How Fair is Fair Use?

Published on July 2, 2019

Is it fair to use an image from Google search and use it on your company brochure? Is it fair to cite someone else’swork in a parody? Is it fair to ‘borrow’ someone else’s words to be used in your own speech?

The concept of fair use, while all too familiar to those in the legal profession, is not so clear cut for many ordinary Filipinos who use and create their own ‘copyrighted’ material. 

Copyright, a ‘category’ of intellectual property, refers to the protection granted by law to the owner of the rights in an original work. Originality means that a work was independently created by the author.

This covers books and other writings, musical works, films, paintings and other visual arts, architectural designs, computer programs, and other literary and artistic works. 

In the Philippines, copyright need not be registered to be protected. The legal protection is given the moment   a work is created. 

Sounds great, right? But this brings in the question of just how far and fair should copyright use be? 

This is a pressing question in this complex age of digitisation, a period that drastically changed the look, medium, and the form through which creative works can be used. 

You need not look far from your own smartphone’s music or digital library to know this is true. 

Fair use

Balancing the interests of intellectual property owners, with those who use it - the general public - is a key function of a healthy intellectual property system. 

Copyright operates on this principle; while giving its creators , may they be musicians, artists, or authors, seemingly sweeping ownership on their works, the public interest is weighed too. This is why in the Intellectual Property Code, and in relevant international treaties, there are limitations to copyright. 

Take for example the controversial Google Library Project - a digitisation initiative of the technology giant that had book publishers up in arms in 2005.

Google digitised 20 million books in participating libraries around the world - including those in the University of the Philippines Diliman without asking permission from the authors, just the libraries who owned the physical books.

Google was sued by the Authors Guild and several big-name publishing houses in 2005 for copyright infringement, for scanning - essentially making a digital copy - the full texts of books into its search database.  

The technology giant invoked that their project falls under the fair use doctrine in the US Copyright Act. 

The legal battle was settled nearly a decade later in 2015, when US Courts issued a decision in favour of Google. 

Among the arguments in the judicial opinion is that Google’s use of copyrighted materials was ‘transformative’ - judges asserted that what  Google did added a further purpose or value to the use of the original object.  This is the case when you can use a tool in the Google Library Project database to search for the frequency of the use of select words, something that can’t be done manually over the millions of books covered.

Moreover, the US courts agreed with Google that while it did copy entire texts of the books, that what Google only allowed to be viewed in a search function, is limited information about the books. the Project allowed snippets view, which allows access to an eighth of a page, and blocks the rest. 

Lastly, judges decided that even if some researchers may be discouraged to buy the actual book as they already have the snippets view, making the limited copy does not make it an effective competing substitute so as to damage the market. 

“With this, there was a sense that copyright owners works were still protected but at the same time you help the students in their research. The purpose of copyright is also served, which is not just protection of right-owners but making sure society benefits from the works through access,” Intellectual Property Office of the Philippines Director General Josephine R. Santiago said.

The US judges considered the Four Factors of Fair Use, which is also observed in the Philippine judicial system in considering fair use: the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.

So what does the law allow?

If you performed your favorite Aegis classic for your family last Christmas, and didn’t charge them a fee to hear you sing, that’s fair use.

If you’re delivering a keynote address to fellow dignitaries and borrowed the quote of your favourite philosopher or author, that’s fair use - so long as you credit the original creator whether in the written speech or in the delivery.

Other instances that may be considered fair use are situations wherein the original work is cited or imitated for personal use and education. 

Few situations in real life point to a black-and-white scenario for fair use but the balance of the right-holder and the user, is at the heart of the matter.

The rights of a copyright owner - the economic and moral rights - merits a separate in-depth discussion but understanding both sides of copyright, as we play the role of  both creator and consumer of it, serves as a useful guide when to give credit where it is due, and when to express ourselves as we see fit.