National Wind Watch

Fair Use Notice

Address infringement concerns to Wind Watch via e-mail.

This site contains copyrighted material, the use of which has not always been specifically authorized by the copyright owner. National Wind Watch serves as an information clearinghouse and research library, making such material available in the context of providing a unique resource of news, research, and opinion for research about the environmental, social, scientific, and economic issues of wind energy development to a worldwide audience specifically seeking information on this topic. National Wind Watch acts in good faith that this constitutes a “fair use” of any such copyrighted material as provided for in section 107 of the U.S. Copyright Law. The material on this site is factual and reproduced for educational purposes without any attempt to profit financially. The material represents a very small fraction of the originating source’s entire work (e.g., news agencies, science journals). And National Wind Watch’s use of the material is transformative in providing context and a research archive for a global audience concerned about wind energy development, for which socially beneficial purpose it is reasonable to post entire articles. Whenever possible, National Wind Watch always includes prominent credit and a link back to the original source.

See Righthaven LLC v. Kayse Jama and Center For Intercultural Organizing [10-cv-01322 (D. Nev. Apr. 22, 2011)], establishing the right of a nonprofit to reproduce an entire news story in the context of its non-commercial educational mission. [judgement: click here]

‘The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990).’ —Campbell v. Acuff-Rose Music, Inc., 510 US 569 - Supreme Court 1994

‘In 2015, the Ninth Circuit issued an important decision holding that copyright holders must consider whether alleged infringement is a fair use before sending a takedown notice. —Electronic Frontier Foundation

"Case Closed: Supreme Court Lets Fair Use Ruling Stand in Google Books Litigation" —Electronic Frontier Foundation

‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ —Electronic Frontier Foundation

What is Fair Use?

[from the Electronic Frontier Foundation]

In essence, fair use is a limitation on the exclusive rights of copyright holders. The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered “fair” does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work.

How does fair use fit with copyright law?

Copyright law embodies a bargain: Congress gave copyright holders a set of six exclusive rights for a limited time period, and gave to the public all remaining rights in creative works. The goals of the bargain are to give copyright holders an economic incentive to create works that ultimately benefit society as a whole, and by doing so, to promote the progress of science and learning in society. Congress never intended Copyright law to give copyright holders complete control of their works. The bargain also ensures that created works move into “the public domain” and are available for unlimited use by the public when the time period finishes. In addition, as part of the public’s side of this bargain, U.S. Copyright law recognizes the doctrine of “fair use” as a limitation on copyright holders’ exclusive right of reproduction of their works during the initial protected time period.

The public’s right to make fair use of copyrighted works is a long-established and integral part of U.S. copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law”.

How do you know if it’s fair use?

There are no clear-cut rules for deciding what’s fair use and there are no “automatic” classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes [also if it is transformative, transformative use being essential to journalistic investigation and research] – Courts are more likely to find fair use where the use is for noncommercial purposes.

The nature of the copyrighted work – A particular use is more likely to be fair where the copied work is factual rather than creative.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole – A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.

The effect of the use upon the potential market for or value of the copyrighted work – If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

What’s been recognized as fair use?

Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.))

Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:

Space-shifting or format-shifting – that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, “ripping” an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)

Making a personal back-up copy of content you own – for instance, burning a copy of an audio CD you own.

Is fair use a right or merely a defense?

Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.

For more information

Stanford University Libraries

Chilling Effects Clearinghouse

U.S. Copyright Office

U.K. Intellectual Property Office

[from the U.S. Copyright Office]

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-bycase basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

[from the U.K. Intellectual Property Office]

What is fair dealing?

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair- minded and honest person have dealt with the work?

Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair, include:

Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.

Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.

The relative importance of any one factor will vary according to the case in hand and the type of dealing in question.

Does this apply to photographs?

Whilst the exception applies to all types of copyright work, it would only be in exceptional circumstances that copying a photograph would be allowed under this exception. It would not be considered fair dealing if the proposed use of a copyright work would conflict with the copyright owner’s normal exploitation of their work. For example, the ability to sell or license copies of photographs for inclusion in newspapers would be a normal exploitation.