Copyright and Fair Use – October 21, 2019

Standard Disclaimer:

I am not an attorney and any comments I post are not intended, nor should they be construed, as legal advice. If you need legal advice, please consult a legal expert who is familiar with the area of legal expertise you need.

This is my occasional post on copyright, specifically “fair use.” I see people claiming “fair use” when using things on blogs or vlogs where it is clearly not “fair use.” “Fair use” is a very restricted exclusion; see the four (4) factors below.A good example is The Audience Roared! — Mitch Teemley where Mitch

I am including some links to help with U. S. “fair use”

https://www.copyright.gov/fair-use/more-info.html;

https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors;

https://www.nolo.com/legal-encyclopedia/fair-use-rule-copyright-material-30100.html

It’s important to realize that many countries don’t have a “fair use” or similar exception. For example, Canada has “fair dealing” – https://library.carleton.ca/find/images/copyright-fair-dealing-and-images; it’s not the same thing as “fair use” in the United States (U. S.). It’s similar in many ways, but in a different link I ran across a while back Canada‘s high court had a ruling where they didn’t define “fair dealing,” instead they said it was decided on a case by case basis. Let’s suppose you use two Canadian bloggers‘ post as a re-post or for something you believe falls under “fair dealing.” Canada‘s high court could rule in your favor in one case, but rule against you in the other case.

In the U. S., “fair use” occasionally falls in a gray (or grey) area where the court could rule for you in one case and against you in other cases. Parody generally falls in the “fair use” category, but satire often doesn’t fall in the “fair use” category. People often wrongly assume the 10% rule is the law. There is no 10% rule in copyright law in the U. S. I actually seen one YouTube Star Trek channel that appears to operate on this theory. They will break Star Trek episodes in segments that are 10% or less, sometimes a lot more than 10%, of the full episode, but post the whole episode over several uploads. I am not outing the channel as it’s not my goal to name them. At some point, CBS may notice them and hit YouTube with multiple take-down notices. In this case, the YouTuber is doing nothing that falls within the four factors in the Wikipedia article above which are also mentioned in the U. S. Copyright Office link:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

This YouTuber makes a lot of money from YouTube because they have a large number of viewers – that rules out #1. Plus, even if the YouTuber had a smaller number of views, YouTube tends to include ads which makes it a for-profit channel even if the profit only goes to YouTube. As mentioned above, some assume #3 means 10%, but per the U. S. Copyright Office link above, there is no mention of 10%.

I had two bloggers complain because I re-blogged their posts using WordPress Reader. In both cases, I removed the re-blogs. One, a well-known blogger has much deeper pockets than me. They allow re-blogging, but only if it’s on blogs or sites that don’t have ads. It doesn’t matter to the blogger that I make no money off the ads. The blogger also ignores the “fair use” exception that #3 allows. With WordPress Reader re-blogs, that’s a very small portion of any article he posts. At some point, probably in about four (4) years, I will re-blog one of their posts, expecting a take-down notice. Before I re-blog it, I will make it clear to the blogger that it falls under “fair use.” This  would be a case of David (me) vs. Goliath (the other blogger). With this blogger, I find what they post other places or on my own. Because I limit how many posts I do per day, I often find an article before he posts it, but if I don’t think it’s important enough to re-arrange my posts, I may post it a day or so later so their post on the topic comes out before mine.

With the other blogger, they were Canadian and I researched Canadian copyright law. Based on comments made by some of the high court comments I noted above, I wasn’t willing to risk a decision where they decided it wasn’t “fair dealing.” My suggestion is for Canada’s legislative branch to better define what is and isn’t “fair dealing.” In general, if someone wants me to take down a re-blog, I will no questions asked. However

 

 

About Wichita Genealogist

Originally from Gulfport, Mississippi. Live in Wichita, Kansas now. I suffer Bipolar I, ultra-ultra rapid cycling, mixed episodes. Blog on a variety of topics - genealogy, DNA, mental health, among others. Let's collaborateDealspotr.com
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