Intellectual Property - Fair Use

Intellectual Property – What is Fair Use?

Thanks to the digital revolution and the rise of the internet, more people than ever are able to generate their own content. This can be in the form of music, videos and even games. If you’ve taken the time to look at some of the popular sites today, you’ll notice that much of the content is based on the intellectual property of others.

YouTube in particular is full of content creators who have made a living from video game play-throughs and movie reviews. But how can they do so through someone else’s intellectual property? Is this not infringing copyright? Well, there is a provision of intellectual property law that’s known as fair use that acts as a defence against possible copyright infringement.

The provisions of fair use

Essentially, fair use is based on the principal that the public is entitled to freely use portions of copyrighted material. It asks in any particular instance of copyright usage ‘is this fair?’. Fair use is determined on a case by case basis. While there is no set definition on what constitutes fairness, there are a number of fairness factors that are considered.

There are four main fairness factors that are included in Australian law.

These are:

  1. The purpose and character of use.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion taken.
  4. The effect of the use on the potential market.

Not all use is fair use

Being able to freely use copyrighted material doesn’t mean you can just start selling clips of famous movies for a tidy profit. Generally fair use allows one to have a limited use of intellectual property for the purposes of comment, criticism or parody.

If you were making a movie review, fair use principals would allow you to use clips of the film without asking permission from the studio.

Intellectual property holders may disagree

Intellectual property holders will not always agree that use of their property has been fair and this is where most litigation arises. Unfortunately, since there’s no one set way to define fair use these cases are inevitable.

It’s a messy legal field but one that is very important in the digital age.

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