සාධාරණ භාවිතය

**Fair use** is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. Like "fair dealing" rights that exist in most countries with a British legal history, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work. 

The doctrine of "fair use" originated in the Anglo-American common law during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and "stifling the very creativity which [copyright] law is designed to foster." Though originally a common law doctrine, it was enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976. The U.S. Supreme Court has issued several major decisions clarifying and reaffirming the fair use doctrine since the 1980s, most recently in the 1994 decision *Campbell v. Acuff-Rose Music, Inc.*

## History 
The 1710 Statute of Anne, an act of the Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the Stationers' Company. The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In *Gyles v Wilcox*, the Court of Chancery established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and fair dealing. Fair use was a common-law doctrine in the U.S. until it was incorporated into the Copyright Act of 1976, .

The term "fair use" originated in the United States. Although related, the limitations and exceptions to copyright for teaching and library archiving in the U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright.

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. In 2006 Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

### U.S. fair use factors 
Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test.

The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in *Lenz v. Universal Music Corp.* (2015) (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."

*.]]
The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in *Folsom v. Marsh'', The court rejected the defendant's fair use defense with the following explanation:

The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at . They were intended by Congress to restate, but not replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." Before the *Campbell* decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard. *Blanch v. Koons* is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting. Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

The *Campbell* case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, *Sony Corp. of America v. Universal City Studios, Inc.*, the Supreme Court had stated that "every commercial use of copyrighted material is presumptively . . . unfair." In *Campbell*, the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use . . . will vary with the context." The *Campbell* court held that hip-hop group 2 Live Crew's parody of the song "Oh, Pretty Woman" was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely. For instance, in *L.A. Times v. Free Republic*, the court found that the noncommercial use of *Los Angeles Times* content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Richard Story similarly ruled in *Code Revision Commission and State of Georgia v. Public.Resource.Org, Inc.* that despite the fact that it is a non-profit and didn't sell the work, the service profited from its unauthorized publication of the Official Code of Georgia Annotated because of "the attention, recognition, and contributions" it received in association with the work.

Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.

It is arguable, given the dominance of a rhetoric of the "transformative" in recent fair use determinations, that the first factor and transformativeness in general have become the most important parts of fair use.

#### 2. Nature of the copyrighted work 
's letters was a key issue in the court's analysis of the second fair use factor in *Salinger v. Random House*.]]

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are not protected by copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by *Time* magazine. Yet its copyright was not upheld, in the name of the public interest, when *Time* tried to enjoin the reproduction of stills from the film in a history book on the subject in *Time Inc v. Bernard Geis Associates*.

In the decisions of the Second Circuit in *Salinger v. Random House* and in ''New Era Publications Int'l v. Henry Holt & Co'', the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's ''droit moral d'artiste'' (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. the U.S. Supreme Court held that a news article's quotation of fewer than 400 words from President Ford's 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair. the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In *Harper & Row,* the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in *Campbell v. Acuff-Rose Music Inc* that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work.
* First, courts consider whether the use in question acts as a direct market substitute for the original work. In *Campbell*, the Supreme Court stated that "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.
* Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the licensing of course-pack copies.

Courts recognize that certain kinds of market harm do not negate fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

#### Additional factors 
As explained by Judge Leval, courts are permitted to include additional factors in their analysis.

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with the defendant's right to freedom of speech, and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for *any* use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances. Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.
However, the Court in the case at bar rejected the idea that file-sharing is fair use.

### Internet publication 
A U.S. court case from 2003, *Kelly v. Arriba Soft Corp.,* provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image search engine was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it was fair use.

On appeal, the Ninth Circuit Court of Appeals found in favor of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as the original artwork was. Second, the photographs had already been published, diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase the exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In August 2008, Judge Jeremy Fogel of the Northern District of California ruled in *Lenz v. Universal Music Corp.* that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video under the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored. YouTube complied after six weeks, rather than the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song. On appeal, the Court of Appeals for the Ninth Circuit ruled that a copyright owner must affirmatively consider whether the complained of conduct constituted fair use before sending a takedown notice under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to assert fair use. 801 F.3d 1126 (9th Cir. 2015). "Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. §&nbsp;107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under §&nbsp;512(c)."

In June 2011, Judge Philip Pro of the District of Nevada ruled in *Righthaven v. Hoehn* that the posting of an entire editorial article from the Las Vegas Review Journal in a comment as part of an online discussion was unarguably fair use. Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. ... Hoehn posted the Work as part of an online discussion. ... This purpose is consistent with comment, for which 17 U.S.C. §&nbsp;107 provides fair use protection. ... It is undisputed that Hoehn posted the entire work in his comment on the Website. ... wholesale copying does not preclude a finding of fair use. ... there is no genuine issue of material fact that Hoehn's use of the Work was fair and summary judgment is appropriate." On appeal, the Court of Appeals for the Ninth Circuit ruled that Righthaven did not even have the standing needed to sue Hoehn for copyright infringement in the first place.

### Professional communities 
In addition to considering the four fair use factors, courts deciding fair use cases also look to the standards and practices of the professional community where the case comes from. Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors.

Such codes of best practices have permitted communities of practice to make more informed risk assessments in employing fair use in their daily practice. For instance, broadcasters, cablecasters, and distributors typically require filmmakers to obtain errors and omissions insurance before the distributor will take on the film. Such insurance protects against errors and omissions made during the copyright clearance of material in the film. Before the ''Documentary Filmmakers' Statement of Best Practices in Fair Use'' was created in 2005, it was nearly impossible to obtain errors and omissions insurance for copyright clearance work that relied in part on fair use. This meant documentarians had either to obtain a license for the material or to cut it from their films. In many cases, it was impossible to license the material because the filmmaker sought to use it in a critical way. Soon after the best practices statement was released, all errors and omissions insurers in the U.S. shifted to begin offering routine fair use coverage.

### Music sampling 
Before 1991, sampling in certain genres of music was accepted practice and the copyright considerations were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case *Grand Upright Music, Ltd. v. Warner Bros. Records Inc.* changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation." This left the door open for the *de minimis* doctrine, for short or unrecognizable samples; such uses would not rise to the level of copyright infringement, because under the *de minimis* doctrine, "the law does not care about trifles." However, 3 years later, the Sixth Circuit effectively eliminated the *de minimis* doctrine in the *Bridgeport Music, Inc. v. Dimension Films* case, holding that artists must "get a license or do not sample". The Court later clarified that its opinion did not apply to fair use, but between *Grand Upright* and *Bridgeport*, practice had effectively shifted to eliminate unlicensed sampling.

### Parody 
Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies, which use a work in order to poke fun at or comment on the work itself and satire, or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

For example, when Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its copyright infringement lawsuit against him because his work effectively parodies Barbie and the values she represents. In *Rogers v. Koons*, Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense. Koons lost because his work was not presented as a parody of Rogers' photograph in particular, but as a satire of society at large. This was insufficient to render the use fair.

In *Campbell v. Acuff-Rose Music Inc*

Text and data mining was subject to further review in *Authors Guild v. HathiTrust*, a case derived from the same digitization project mentioned above. Judge Harold Baer, in finding that the defendant's uses were transformative, stated that 'the search capabilities of the [HathiTrust Digital Library] have already given rise to new methods of academic inquiry such as text mining."

### Reverse engineering 
There is a substantial body of fair use law regarding reverse engineering of computer software, hardware, network protocols, encryption and access control systems.

### Social media 
In May 2015, artist Richard Prince released an exhibit of photographs at the Gagosian Gallery in New York, entitled "New Portraits". His exhibit consisted of screenshots of Instagram users' pictures, which were largely unaltered, with Prince's commentary added beneath. Although no Instagram users authorized Prince to use their pictures, Prince argued that the addition of his own commentary the pictures constituted fair use, such that he did not need permission to use the pictures or to pay royalties for his use. Several lawsuits were filed against Painter over the New Portraits exhibit. However, Paul Geller's 2009 *International Copyright Law and Practice* says that while some other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.

The International Intellectual Property Alliance (IIPA), a lobby group of U.S. copyright industry bodies, has objected to international adoption of U.S.-style fair use exceptions, alleging that such laws have a dependency on common law and long-term legal precedent that may not exist outside the United States.

### Israel 
In November 2007, the Israeli Knesset passed a new copyright law that included a U.S.-style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution. The law sets up four factors, similar to the U.S. fair use factors (see above), for determining whether a use is fair.

On September 2, 2009, the Tel Aviv District court ruled in *The Football Association Premier League Ltd. v. Ploni* that fair use is a user right. The court also ruled that streaming of live soccer games on the Internet is fair use. In doing so, the court analyzed the four fair use factors adopted in 2007 and cited U.S. case law, including *Kelly v. Arriba Soft Corp.* and *Perfect 10, Inc. v. Amazon.com, Inc.*.

### Malaysia 
An amendment in 2012 to the section 13(2)(a) of the Copyright Act 1987 created an exception called 'fair dealing' which is not restricted in its purpose. The four factors for fair use as specified in US law are included.

### Poland 
Fair use exists in Polish law and is covered by the Polish copyright law articles 23 to 35.

Compared to the United States, Polish fair use distinguishes between private and public use. In Poland, when the use is public, its use risks fines. The defendant must also prove that his use was private when accused that it was not, or that other mitigating circumstances apply. Finally, Polish law treats all cases in which private material was made public as a potential copyright infringement, where fair use can apply, but has to be proven by reasonable circumstances.

### Singapore 
Section 35 of the Singaporean Copyright Act 1987 has been amended in 2004 to allow a 'fair dealing' exception for any purpose. The four fair use factors similar to US law are included in the new section 35.

### South Korea 
The Korean Copyright Act was amended to include a fair use provision, Article 35-3, in 2012. The law outlines a four-factor test similar to that used under U.S. law:

## Fair dealing 
Fair dealing allows specific exceptions to copyright protections. The open-ended concept of fair use is generally not observed in jurisdictions where fair dealing is in place, although this does vary. two enquiries specifically into the Copyright Act (1998, 2014); and four broader reviews (both 2004, 2013, 2016). One review (2000) recommended against the introduction of fair use and another (2005) issued no final report. Two of the recommendations were specifically in response to the stricter copyright rules introduced as part of the Australia–United States Free Trade Agreement (AUSFTA), while the most recent two, by the Australian Law Reform Commission (ALRC) and the Productivity Commission (PC) were with reference to strengthening Australia's "digital economy".

### Canada 
The *Copyright Act of Canada* establishes fair dealing in Canada, which allows specific exceptions to copyright protection. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that "the present fair dealing provisions should not be replaced by the substantially wider 'fair use' concept". Since then, the Canadian fair dealing exception has broadened. It is now similar in effect to U.S. fair use, even though the frameworks are different.

CCH Canadian Ltd v. Law Society of Upper Canada [2004] 1 S.C.R. 339, is a landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

### United Kingdom 
Within the United Kingdom, fair dealing is a legal doctrine that provides an exception to the nation's copyright law in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events.

## Policy arguments about fair use 
A balanced copyright law provides an economic benefit to many high-tech businesses such as search engines and software developers. Fair use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers. Oracle Corporation, Sun Microsystems, Yahoo! and other high-tech companies, released a study that found that fair use exceptions to US copyright laws were responsible for more than $4.5&nbsp;trillion in annual revenue for the United States economy representing one-sixth of the total US GDP. The study was conducted using a methodology developed by the World Intellectual Property Organization. Fair Use Week was first proposed on a Fair Use Allies listserv, which was an outgrowth of the Library Code of Best Practices Capstone Event, celebrating the development and promulgation of ARL's *Code of Best Practices in Fair Use for Academic and Research Libraries*. While the idea was not taken up nationally,  Copyright Advisor at Harvard University, launched the first ever Fair Use Week at Harvard University in February 2014, with a full week of activities celebrating fair use. The first Fair Use Week included blog posts from national and international fair use experts, live fair use panels, fair use workshops, and a Fair Use Stories Tumblr blog, where people from the world of art, music, film, and academia shared stories about the importance of fair use to their community. The first Fair Use Week was so successful that in 2015 ARL teamed up with Courtney and helped organize the Second Annual Fair Use Week, with participation from many more institutions. ARL also launched an official Fair Use Week website, which was transferred from Pia Hunter, who attended the Library Code of Best Practices Capstone Event and had originally purchased the domain name fairuseweek.org.

## See also 
## References 
## Further reading 
* 
* 
* United States. Congress. House of Representatives (2014). The Scope of Fair Use: Hearing Before the Subcommittee on Courts, Intellectual Property, and the Internet of the Committee on the Judiciary, House of Representatives, One Hundred Thirteenth Congress, Second Session, January 28, 2014.

## External links 
* U.S. Copyright Office Fair Use Index, a searchable database of notable fair use cases in U.S. federal courts
* The Fair Use/Fair Dealing Handbook , a compilation of national statutes that explicitly refer to fair use or fair dealing
* CHEER, a repository of copyright educational resources for higher education