What Is “Fair Use” of a Copyrighted Work
Copyright laws protect the author of a creative work, setting out the rights of the owner, as well as the responsibilities of other people who want to use the work. The most notable exception to those rights, the so-called Fair Use, has received substantially different degrees of protection under different legal systems.
What is Fair Use?
Fair use is a use of a copyrighted work that can be done without permission from the copyright owner. If your use of a work qualifies as a fair use, then it would not be considered an illegal infringement.
Different legal systems have developed different theories on what constitutes Fair Use and must be warranted a certain degree of legal protection.
Fair use in Brazil and Argentina
Although they never mention the concept of “Fair use”, the Brazilian copyright law (National Act No. 9.610 of 1998, article 46) and the Brazilian software law (National Act No. 9.609 of 1998, article 6) discipline some exceptions to general copyright rules. They provide, in fact, quite specific cases of protected fair use, most of them related to the non-commercial, artistic or cultural use.
Reproducing some of the work if you need to comment on it or critique it, for instance, is considered Fair Use under Brazilian law. Thus, reproducing a work in press, mentioning the author, or quoting it in books and commentaries does not infringe the author’s copyright. Reproduction for private uses is also considered Fair Use: so it’s fair use to reproduce short extracts from a work for the private use of the copier, or reproducing “stage and musical performance if carried out in the family circle, or for exclusively teaching purposes in educational establishments, and if devoid of any profit-making purpose”.
Argentina, quite similarly, does not expressly mention the principle of Fair Use in its Copyright Law, Law No. 11.723 of September 28, 1933, but still provides for substantial copyright exceptions.
Section 10 provides that any person may publish, for didactic or scientific purposes comments, criticisms or notes referring to intellectual works.
It provides, furthermore, permitted use of political speeches, literary discourses, conferences on intellectual subjects, and parliamentary speeches for journalistic information (Section 27); the permitted use of literary or artistic works in public acts organized by educational institutions (Section 36); and finally the permitted use of pieces of music in concerts, auditions and public performances by musical organizations belonging to State institutions (Section 36).
Fair use in the digital world
How is the concept of Fair Use evolving in the shifting legal panorama of an ever changing digital world? Digital platforms like YouTube or Vimeo see thousands of users uploading materials that make use of copyrighted music and videos, that, to some extent, would deserve protection under the Fair Use doctrine. For instance, the case of a YouTube video portraying a girl dancing on the notes of a famous Prince’s song on the stereo received a takedown notice by Universal Music and it was deemed to deserve protection under US law in a recent case (Lenz vs. Universal Music Corp.), where the Courts adopted a quite wide notion of Fair Use. This would have been impossible in Brazil or Argentina, where the cases of Fair use constitute a restricted list and are predetermined by the law.
It must be said, however, that in 2010, Brazil amended the law No 9.610/1998 introducing a new article 107 that provides a quite innovative case of Fair Use. Some CDs or DVDs have a digital right managements system (DRM) in place, which is basically a digital lock that prevents users from making illegal copies of that disc. Article 107 states that it is not illegal to circumvent digital locks if these hinder or prevent the uses allowed by arts. 46, 47 and 48 of the Brazilian Copyright Act, which, as we saw, provides some cases of fair use. In other words, breaking digital locks does not constitutes copyright infringement if it’s for fair use.