Often when someone copies all or part of somebody else’s copyrighted material, they think they have a defense to any copyright infringement claim because of the doctrine of “fair use.”
Unfortunately, in many situations, it’s not that easy to know whether the copying would actually be considered “fair use.”
The term “fair use” isn’t even defined by the copyright statute. Rather, the statute says that in order to determine whether copying is a fair use, at least the following four factors must be considered:
1. The nature of the original work;
2. The nature and purpose of the use, including whether it is for commercial use or for nonprofit educational purposes and whether the use is “transformative” (adding something new);
3. The amount and substantiality of the portion used in relation to the original work as a whole; and
4. The effect the copying would have on the market for, or value of, the original work.
As you can see, there are no “bright line” rules defining fair use. Rather, a court must weigh various factors on a case-by-case basis. Even the courts have difficulty coming to agreement on whether a use is a fair one.
Just this week, the US Court of Appeals for the Second Circuit decided a dispute between Fox News Network and TVEyes, a media company that continuously records the audiovisual content of more than 1,400 television and radio channels – some of which are owned by Fox.
TVEyes then imports that content – without the owners’ consent – into a database. TVEyes’ customers, who pay it $500 per month for its services, can then view, archive, download, and email to others ten-minute clips.
TVEyes copies the closed-captioned text of the content it imports, too, so its clients can search for clips by keyword, as well as by date and time.
This service allows TVEyes’ clients to easily locate segments of television programs they’re interested in and watch up to 10-minute clips.
Needless to say, Fox was not thrilled that TVEyes was selling Fox’s content to its clients without permission, and Fox sued TVEyes for copyright infringement. TVEyes argued that its enabling of others to watch Fox’s programming is protected by the fair use doctrine.
The lower court ruled that TVEyes’ allowing its clients to search for videos by term, watch the resulting videos, and archive the videos on the TVEyes servers was fair use, but the downloading, e-mailing and “Date-time search” functions were not.
The appellate court reversed the district court’s finding of fair use, holding that:
“At bottom, TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license. Having weighed the required factors, we conclude that the balance strongly favors Fox and defeats the defense of fair use.”
The court referred to its 2015 decision in which it held that Google’s creation of a text-searchable database of millions of books (including books under copyright) was a fair use because Google’s service was “transformative” and because integral features protected the rights of copyright holders.
Noting that in the Google decision the court cautioned that the case “test[ed] the boundaries of fair use,” the court went on to hold that TVEyes “exceeded those bounds.”
In particular, although TVEyes’ redistribution of content served a transformative purpose, it also made available virtually all of Fox’s copyrighted audiovisual content, depriving Fox of revenue. Google, on the other hand, made only very small snippets of books available to the viewer.
Note that if you are a teacher, another potential defense to an infringement claim arises under the Technology Education and Copyright Harmonization (TEACH) Act, which was enacted to alleviate some of the burdens faced with regard to online distance education.
However, this act has limited applicability, and for materials and situations not covered by the TEACH Act, instructors must rely on the fair use doctrine.
Please feel free to contact us if you’re in doubt as to whether your copying of someone else’s work – or their copying of your work – is likely to be found a fair use or an infringement.
