I expected to be less than
riveted when I saw a panel of lawyers on the agenda at the SIIA summit talking about
copyright and fair use. 

Jon Hart, Member Dow Lohnes PLLC, was the moderator. Tom Kirby, Partner Wiley, Rein & Fielding, and
David Olson, Resident Fellow
Center for Internet & Society, were
the panelists.

The session started a bit
tongue in check with Jon’s statement “No one writes without being paid unless
they’re a block head.”

We all know what leaves

Copyright protection was
built into Article
1 Section 8 of the Constitution
“To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries…”

In order to “allow free
speech to co-exist with copyright”, the Fair
Use Doctrine
was born. According to Stanford: 

“Fair use is a copyright
principle based on the belief that the public is entitled to freely use
portions of copyrighted materials for purposes of commentary and criticism.”

Tom Kirby reviewed four
factors a court would consider in determining whether a use was a fair use or subject
to copyright. 

Purpose and Character of the Use
Did someone take the core
of the work and sell it for profit? Did
they add any value to the work or expand it in any way?  

Nature of the Copyrighted Work
A work that is fact-based
(scientific or news related) may be more difficult to protect under copyright
than a creative work.

However, the panelists
felt that unpublished works are often more protected than previously published
works. The courts seem to place a high
value on the right of first publication. 

Amount and Substance of Use
How much of the
copyrighted work was used?  

“How much” is judged both
quantitatively and qualitatively. If
someone took the essence of the work while only reproducing a small
percentage of the original, the use may still be considered in violation of
fair use. 

Impact on the Market of the Original Product
If the use “deprives
the copyright owner of income or undermines a new or potential market for the
copyrighted work
” it is more likely to be considered a violation of fair

This session made me
realize that I knew nothing about copyright and fair use. It was a great primer!