What are the exceptions to copyright law? Curious to know what rights consumers have? This article explores the nuances to copyright law and what is considered permissible by consumers, including the exceptions of “fair use,” “first sale doctrine,” and “merger doctrine.”
When can a work be copied without violating the copyright laws?
There are exceptions to copyright law which allow portions of copyrighted works to be copied by others without the owner’s permission. These include the “fair use” exception and the “first sale doctrine,” explained more fully below. Another exception is the “merger doctrine,” which holds that when there are only a few ways to express an idea, none of those expressions can be copyrighted.
How do I determine “fair use” copying?
“Fair use” encompasses parodies of copyrighted works, excerpts for reviews and commentary, and derivative works having a transformative impact on their source material. There are four factors in determining if the copying of copyrighted material is fair use:
- Intention of copying. The more transformative the purpose, the likelier that a court will find the use was fair. Copying in order to parody or satirize gets far more protection than copying simply to generate a knock-off of a successful product.
- Nature of copyrighted work. The further a work is from reality, the likelier that copying was of protected expression than unprotected facts. Non-fiction receives less copyright protection, as copying will often reflect the same underlying facts.
- Amount used. The more of the copyrighted work taken, the likelier that the copier is infringing. However, taking even a small portion can be infringement if it is the heart of the copyrighted work. Parody may justify taking all of a work if the intent is clearly satirical.
- Effect on market for copyrighted work. Although harder to prove, if the potentially infringing work harms the market for the copyrighted work because people are buying the infringing work instead of the copyrighted work, the use is probably not fair.
Examples of fair use include copying portions of a work for political or social commentary, copying parts of published speeches for political cartoons, or sampling parts of a song to comment on it. It is also fair use to quote short portions of books to review them or copying and distributing short excerpts to aid in class instruction or for news reporting.
What is the “first sale doctrine?”
The “first sale doctrine” stipulates that a consumer can buy a copyrighted work and then alter, add to, or destroy that particular copy. This also allows a market for resale of used copies by consumers. There is, however, a debate relating to “reputational” rights of an author which bar alterations impacting the author’s reputation.
Extra restrictions on the first sale doctrine are linked to copyrights in digital media. The Digital Millennium Copyright Act expands the rights of copyright owners in preventing others from circumventing encryption designed to prevent piracy. It also limits the rights of consumers to do what they want with a purchased digital copy of a copyrighted work.
Learn more about our approach to trademark and copyright law.
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