This article has been written by Akshay Gendle pursuing Diploma in Technology Law, Fintech Regulations and Technology Contracts and edited by Shashwat Kaushik.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
There is nothing like the original creation in this world. Everything that is ever created has been influenced by or inspired by an existing piece of work by someone. It can be an artwork or an invention. And it is allowed by the law under the garb of fair use. But the 21st century is a digital century, and using other people’s work is extremely easy. Thus, we cannot stop people from taking inspiration from existing work. But to what extent is this inspiration valid?
That is the fundamental question. Here, we’re discussing the same doctrine of fair use under the law, especially in digital media in the digital century.
History and origin of fair use
There was no concept of fair use in the earlier century because it was hard to copy or replicate other people’s work. But with the invention of the printing press in the 15th century, copying became an easy process. Thus, protecting the original creation has become immensely important.
Later in the 17th century, in India, British authors started using French expressions without obtaining their prior permission. It was justified on the basis of fair use, i.e., for news reporting, criticism, etc., anyone can use the existing work without violating the original author’s rights.
Even the Supreme Court of India observed that copyright law has two objectives:
- to protect the original creation of the individual, and
- to help progress science and art.
For the second objective, we have to make available the existing work without any discrimination or fees to the people at large so that they can bring innovation to society, which eventually will help progress society. This is nothing but the fair use doctrine and its importance is cited by the Apex Court.
What is fair use doctrine
Generally, this doctrine allows people to use the copyrighted work for free to some extent without infringing on the original person’s rights. It allows unlicensed use of work in a limited sense for the purpose of comment, research, teaching, criticism, news reporting, etc.
This work may include original work of expression, including literary, musical, pictorial, movie, audiovisual, etc. Section 52 of the Indian Copyright Act of 1957 explains the fair use doctrine and the circumstances in which fair use is allowed.
Similarly, Section 107 of the US Copyright Act enlists four factors to check if the situation falls within the ambit of fair use or not.
These four factors are as follows
The purpose and character of the use
Here, the Court primarily sees if the person is adding new expression and meaning to the existing work or merely copying stuff as it is. And the new work adds some value to the existing work by adding some of his own insights, research, understanding, etc.
The nature of the copyrighted work
If the work is factual in nature, like a biography, then it is likely to be considered fair use by the court as it tends to be more beneficial to the public at large. If the work is fictional in nature, like novels and plays, then the court generally provides more protection because of its creative nature. If the work is already published, then the scope of fair use increases compared to the work that is unpublished because the Court grants the original author the right to control the first appearance of his work to the public at large.
The amount used and its importance to the whole
Generally, more money leads to infringement but that is not the case all the time. The importance of the copied portion matters the most. In the Harper & Row vs. Nation Enterprises (1984) case, the 300-word copied portion was considered substantial of the 200,000 manuscripts as the Court considered it to be the heart of the book.
The effect of the use on the market for the copyrighted work
If using a small portion leads to potential harm to the work in the market, then it is considered beyond the scope of fair use.
Here, the market includes the present as well as the future market for the work. You wish to publish the book and it is selling well in the present market. But you also have the right to publish it in many different languages across the world and even future movie rights vest with you. Thus, if someone wishes to publish your book in another language or wishes to make a movie, he needs to get your prior permission for the same.
Therefore, it is clear that fair use is subjective in nature and totally depends on the facts of each case. Judges play a vital role in deciding the nature of work and if it fits into the ambit of fair use or not. But this fair use policy brings its own challenges when it comes to digital media and we are discussing the same fair use doctrine in today’s digital media world.
What is digital media
Digital media includes information that is in digital format and shared on the internet or computer networks. Its creation, distribution, storage, and use happen on electronic devices. This includes audio, video, text, graphics, etc.
That means almost everything we are seeing today is in digital format and can be considered digital media. For example, the older printing press is replaced by digital prints, a play is replaced by movie theatres and OTT Platforms, etc. Today, the original creation of a person is in digital format and in the most vulnerable state like never before.
Thus, with technological advancement and the emergence of artificial intelligence, protecting the original creation and granting fair use rights to the people has become a daunting task for the law.
Fair use in digital media
When it comes to digital media, we need to discuss social media platforms, news media, and even artificial intelligence. All these are major parts of digital media and massive amounts of information and data are used by them, so the chances of copyright infringement are high. Hence, the application of the fair use doctrine is immensely important in these parts of digital media.
Artificial intelligence and fair use doctrine
AI has really revolutionised the world with its capabilities and has almost superseded human capabilities to some extent. All the AI models work on a similar process of feeding them the vast amount of data that is present on the internet and then they regenerate this fed data according to the commands of the user. Hence, they are called generative AI because they are working on the data that is already present.
But this has ignited a heated debate across the world about whether this software infringes on the rights of the person who created this data in the first place.
Thus, a lot of lawsuits were filed against these AI companies, claiming they had infringed on their copyrights. But at the same time, these AI companies are also trying their best to keep this AI under the garb of fair use under the copyright law.
As discussed earlier, whether the work falls within the ambit of fair use or not depends upon four major factors, and these AI companies also take advantage of these four factors.
- The first factor targets whether the work is transformative or not. It was argued that the primary objective of the original author’s work is to showcase his thoughts and expressions to his audience. The AI is trained by the intermediate copying of works, which is like a reverse engineering process. The aim of this process is to understand how human-generated media works. Thus, the objective of AI is not expressive. It is clear that the object of an author’s work is different and the objective of AI with the same information is different. Even the output that is generated by an AI is highly transformative and unique.
- The second factor talks about the nature of work. It was argued that it has some ambiguity and that this factor does not play a very important role when the first and fourth factors are strong.
- The third-factor talks about the amount and substantiality of the portion. The argument is quite interesting here. AI is almost taking the whole data of the author but the output that it is providing is highly transformative and completely different. It’s more like it’s providing some sort of competent substitute for the public. Furthermore, the original work that AI engulfs in this process is not at all accessible to the public. Thus, it stands as a valid point for fair use.
- The fourth factor in determining fair use talks about the effect of the use on the potential market of the original work. AI software consumes the original data of the author and reproduces it according to the commands of the user. But the potential market for the original work of the author is a human market. Thus, apparently, AI is not snatching the customers of the author. However, authors may argue that AI-generated work may harm the value of their existing work.
But a very clever argument was provided in this scenario by the AI companies. It was stated that AI systems are highly innovative and have massive social benefits in writing, assisting, legal, and even in the medical field. Furthermore, it was proposed that the AI system has immense potential and innovation and one cannot overview its capabilities. And even the fair use doctrine was incorporated for the benefit of science and society in the first place. And hence, we shall not neglect the future of AI, as it has disrupted the world in its first generation.
Social media and fair use doctrine
One of the facets of digital media is social media. YouTube is the most used social media website across the world. It has almost 122 million daily active users and around 3.7 million videos are uploaded on a daily basis. Hence, we are discussing the same here.
While posting a video on YouTube, there is a YouTube terms of use section that you need to accept. Upon acceptance, the platform and users also get the right to share and promote your work with others.
Well, this does not mean that anyone can use your work without your permission. But if it happens, then it violates the platform’s terms of use and will get a copyright strike. This terms of use section plays a vital role on almost every social media website.
YouTube’s fair use policy
When a creator uses some portion of copyrighted work in his creation, he chooses the YouTube Fair Use Disclaimer. This disclaimer clarifies that the creator has used some copyrighted portions of his work under the fair use policy for commenting, criticism, educating, etc. purposes. This essentially reduces the chances of future copyright claims from the original owner.
The American Digital Millennium Copyright Act (DMCA) provides a safe harbour rule and it states that online companies are not liable for transmitting and storing copyright-infringing data if they are not aware of it but once they are aware of this information, they have to take instant action against such infringing work.
Conclusion
Fair use is an essential doctrine for the progress of science and art in society. It was quite easy to apply this doctrine in the earlier period. But the 21st century is digital in nature. Technological advancement and artificial intelligence have changed the world immensely. Thus, the application of fair use has become a daunting task for the law. We already saw how AI companies are defending themselves against copyright infringement and are using their best logic to take advantage of this fair use doctrine. Thus, courts around the world are facing the same challenge of applying the fair use doctrine.
References
- https://vakilsearch.com/blog/everything-there-is-to-know-about-the-copyright-disclaimer-under-section-107/
- https://www.uspto.gov/sites/default/files/documents/OpenAI_RFC-84-FR-58141.pdf#page=5
- https://www.oba.org/Sections/Entertainment,-Media-and-Communications-Law/Articles/Articles-2021/March-2021/The-Fair-Use-Doctrine-in-the-Age-of-the-Digital-Cr?lang=fr-ca
- https://www.linkedin.com/pulse/definition-digital-media-rahul-sikarwar-digital-marketing-expert/
- https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html
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