As fair use ( German Appropriate use ) refers to a law doctrine of copyright systems of some common law (eg. -Countries American copyright ) that certain unauthorized uses of protected material grants, provided they public education and the To stimulate intellectual productions. The doctrine is codified in Section 107 of the US Copyright Act (17 USC ) and fulfills a function comparable to that of the limitation provisions of continental European copyright law.
In the American legal area, fair use allows not only quotations but also parodies of a copyrighted work, but not satires . A parody as such must be very closely linked to the original, otherwise it is considered a satire that is not allowed.
In 1710 , the Statute of Anne in Great Britain first established the right of the author to his published work. Initially, this statute did not provide for any exceptions. However, these developed in the case law of the common law and were finally codified in the USA in the Copyright Act of 1976, 17 USC § 107. In the United Kingdom and several Commonwealths , a similar, more restrictive concept called fair dealing applies .
Fair Use states that the reproduction of copyrighted material for the purposes of criticism, opinion, reporting, education and science does not constitute a copyright infringement. Whether or not it is appropriate to use copyrighted material must be weighed up in each individual case according to the following criteria:
- Purpose and type of use (commercial or not; transformative use or not (so-called transformative use))
- Type of copyrighted work
- Extent and significance of the excerpt used in relation to the entire work
- Effect of use on the value and exploitation of the protected work
These criteria must also be weighed up for previously unpublished works. Depending on the individual case, other factors may also be included in the assessment in court. The law deliberately leaves some room for discretion. Overall, it restricts copyright law to serve its original purpose as defined in the United States Constitution , the advancement of science and the arts.
Some American legal scholars like Tom W. Bell see fair use doctrine as just a mechanism to repair a market failure . Julie Cohen describes fair use as a positive right that applies even if the rights holder protects the work through a digital rights management system.
- Achim Förster: Fair Use. A system comparison of the general barriers clause of the US-American Copyright Act with the barrier catalog of the German Copyright Act , Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149678-3
- Manuel Kleinemenke: Fair Use in German and European Copyright Law? A comparative law study to make the copyright barrier catalog more flexible based on the model of the US fair use doctrine , Nomos / CH Beck / Stämpfli, Baden-Baden 2013, ISBN 978-3-8487-0643-3
- David Nimmer: Fairest of them All and other Fairy Tales of Fair Use , 66 Law and Contemporary Problems 263 (Winter / Spring 2003)