Copyright Law, as defined by the Berne Convention, is the right of a creator to the Intellectual Property of their work, to the marketing and general use of that work. It has many different clauses, according to the type of work being copyrighted, but is generally applied to literary works, works of art, music and Intellectual Property, the use of ideas. It does not apply to Patents or Trade Marks which each have their own laws and regulations. A work which is copyright to a specific person or company does not need to be registered, and copyright takes effect from the moment creation is begun through, according to the type of work involved, to many decades after the creator’s death.
For works of literature, including shorter articles and journalism, a certain amount of a work may be used by other people or companies under the principle of Fair Use. That is, a portion of the work for review purposes, as a reference in another work or as a quotation to back up, or refute, another work. Copyrighted works used by others under the principles of Fair Use do not require the approval or permission of the copyright holder.
Whilst copyright is clearly defined by the Berne Convention, the Fair Use principle is subject to many different laws, on a national level, which may differ one from another. The laws concerning Fair Use are different, for example, between the United States and European countries and, although the term Fair Use originated in the United States, it has been a part of British legislation since 1709.
Fair Use of a work is explicitly limited in scope. The taking of a significant portion of a work to produce a new work, even when this new work has additional information added to it, is a breach of the various existing laws. The use of a smaller portion of an original work to enhance a new one, whereby knowledge made available to readers takes primary importance, is considered acceptable in most cases. Courts set up to consider what is Fair Use and what is copyright infringement are required not only to assess the size of the work being used and its placement within a new work, but also the scope of the quoted text. Thereby it has been shown, under United States laws, that a short extract taken from another work which may be considered to contain the heart of that work is a substantial extract, and falls outside the realms of Fair Use.
Fair Use is also limited when the original work is harmed by an extract or publication in another work. Courts have been required to consider whether the publication of a new work containing extracts from another will affect the market potential of the original and, effectively, the possibilities for the original author to gain financial recompense for the original. A new work which supersedes an original, pushing it from the marketplace, but which contains extracts from that work may be judged to fall outside the rules on Fair Use, as the new work potential or substantially harms the author of the first.
It is generally considered, by people using the works of others under a claim of Fair Use, that a certain length – for example, three hundred words – brings usage into the realm of Fair Use. Further, it is believed by some that a non-commercial enterprise using the works of others also falls under the Fair Use rules. In both cases the person using another’s works cannot necessarily claim Fair Use, depending on the nature of what is being copied and the manner in which it is to be used. Courts have often defined the use of a shorter text as falling outside Fair Use according to its scope and substantiality but accepted longer extracts. A non-commercial enterprise using the works of another will also fall outside of the Fair Use clauses and legislation as the use may harm the originators work and income or marketing capabilities. There is no set size of a work which may be used for another, each case is judged individually upon its merits and, unlike in all other cases before a court of law, it is required that the defense justify their case of Fair Use, rather than that the prosecution should prove it.
Fair Use of copyrighted works is a very complicated area, especially with written works. It is further complicated by the use of disclaimers – which are often invalid when used against Fair Use – and the use or lack of use of attribution which may, in some cases, bring copying of a work within the scope of civil law as theft and plagiarism. Fair Use does not apply in all countries in the same way as Copyright Law, with only five countries presently having clear and concise judgments and legislation on what may be called Fair Use and what falls outside of its terms. For all other countries legislation is contained within national copyright laws and the Berne Convention.
A fair rule of thumb is: consider how substantial the extracted work is; whether the new work adds significantly to present knowledge; whether the new work is a reference, scholastic or critical work; whether the original work and its marketability will be damaged in any way. Should a chosen extract meet all the criteria the chances are that it may be considered Fair Use.