In the UAE, Federal Law No. 7 of 2002 on Copyrights and Related Rights (the UAE Copyright Law’) has several restrictions and exceptions that limit the extent of copyright protection and permit either the unrestricted use of works under specific conditions or the use of works without permission but in exchange for payment. In some situations, fair use is a legal concept that encourages freedom of expression by allowing unauthorized copyright-protected works.
Usually, a finding of fair use comes during a copyright infringement action. A copyright holder (the plaintiff) will charge someone of infringing on a protected work (the defendant). At this stage, the defendant accused of infringement may claim that the violation was justified under the concept of fair use. This article will cover actions that do not constitute copyright infringement and thus protected by the fair use concept. Further, it will also cover the test, which helps determine the fair use of copyrighted Work.
What is the Fair Use doctrine?
Fair use is a legal concept that states that you may reproduce copyright-protected content under some conditions without obtaining permission from the copyright owner. Fair use is an absolute defence that may be used in response to a copyright owner’s allegation that someone is violating their copyright. Fair use allows a party to use a copyrighted work for non-commercial purposes without the copyright owner’s consent.
For example: “Donald Duck Meets Glenn Beck in Right Wing Radio Duck” by rebellious pixels is an example of fair use doctrine. This remix incorporates brief excerpts from a variety of source materials. The remixes convey a new message about the harmful impact of provocative rhetoric during financial crises. Fair use may apply to works that provide new meaning to the original material.
Acts amount to Fair use under UAE Copyright Law.
Article 23 of the UAE Copyright law puts reproduction of the Work within the scope of ‘fair use’ and restricts it to justify the reason for copyrighted work reproduction. The author of copyrighted Work cannot prevent publication in newspapers, periodicals or by broadcasting organizations his or her works if it falls under the following categories of Work:
- Extracts relating to current events
Extracts obtained from publications relating to current events that have been made lawfully available to the public does not amount to copyright infringement. It is critical to identify the Work’s source and creator.
- Publication of Debates
Published papers debating issues that influenced public opinion at one point in time does not constitute Copyright infringement. It is also essential to cite the source and author of the article.
- Current news reporting
Speeches, lectures, and addresses delivered during general sessions of Parliament, judicial bodies, and public gatherings, provided that such speeches, lectures, and addresses are made available to the press and reproduced in the form of current news coverage.
Four-factor test to determine Copyright Infringement case under Fair use doctrine
Generally, a finding of fair use comes during a copyright infringement case. A copyright holder (the plaintiff) will charge another party of infringing on a copyrighted work (the defendant). At this stage, the defendant facing infringement charges may claim that the violation was justified under the fair use principle. However, copyright law establishes four criteria that must be examined when determining whether a use is fair. These are the following factors:
- The purpose behind the use of the Copyrighted Work
The first factor is primarily concerned with the commercial or non-commercial nature of the usage and the transformative nature. Commercial uses are less likely to be considered fair use, while non-commercial uses are more likely to be regarded as fair use. Typically, courts believe whether the usage is “transformative.” That is, whether it contributes new expression or meaning to the original work or whether it just copy of the original. If the use is transformative, it is more likely to be considered fair use; if it is not, it is less likely to be regarded as fair use.
In Sony Corporation of America, et al., v. Universal City Studios, Inc., etc., et al. (464 U.S. 417), the Supreme Court of U.S. stated that the claim to fair use for copying a news broadcast might be greater than the one for copying a motion film. Of course, not all uses are interchangeable. Fair use claims for commercial purposes is considerably weaker than copying for personal benefit.
- Nature of the Copyrighted Work
The second factor is concerned with the nature of the copyrighted Work. The Court will see whether the copied Work is a part of fiction or factual works. You have a scope of protection under fair use if the reproduced material is from factual works such as biographies than the fiction works such as plays or novels. Additionally, you will have a better case for fair use if you copy content from a published work rather than an unpublished one. The scope of fair use is less for unpublished works since an author retains control over his or her expression’s initial public appearance.
- The Amount in which copyrighted Work used
Small parts of original Work are more likely to be deemed fair use than big ones. However, even a tiny portion of Work may count against fair use in certain circumstances and amounts to copyright infringement if it is the “heart of work”. It is also known as Substantial Copying of Work.
In Infopaq International A/S v Danske Dagblades Forening [2009], the main issue before the Court was whether copying only eleven words of text was considered substantial copying? In addressing this issue, the Danish Supreme Court determined that an extract of eleven words from a newspaper storey may form a significant portion of a work if the excerpt communicates to the reader an aspect of the Work that expresses the author’s intellectual creativity.
- Effect of the Used Work on the market
If copyrighted material is detrimental to the copyright owner’s present or prospective market, i.e. if the usage deprives the copyright owner of revenue, it will be weighed against fair use. Along with the first, this is a critical element in the fair use examination.
In Rogers v. Koons, 960 F.2d 301, an artist without authorization utilized a copyrighted picture as the base for wood sculptures, replicating every detail of the original. He made massive revenue with the sale of the statues. The issue before the Court was whether the defendant’s use of the plaintiff’s picture to create sculptures constituted a fair use?
Held: The Court disagreed with the contention made by the defendant and held that since the defendant’s Work was mainly commercial, “the probability of future damage to plaintiff’s picture is assumed, and the market for plaintiff’s work has been harmed.”
The purpose of this article is to provide a general overview of the subject. If you want to use content protected by copyright that you did not create, we highly advise you to get legal counsel first. To know more about the Fair use doctrine, contact experts today. HHS Lawyers and Legal Consultants specialize in dealing with copyright infringement cases and provide Copyright enforcement services.