Re: Fair Dealing / Fair Use

I came across this string rather late, but perhaps the following will help re the "user right" vs "statutory defense" and "burden of proof" issues: Fair use of copyrighted material might well be considered a user "right." After all, the language of 17 USC 107 specifically states that "*** the fair use of a copyrighted work *** is not an infringement of copyright." This seems to imply that the burden of showing that a use is not "fair" should be on the plaintiff. However, in essentially all cases, courts have placed the burden of proof (that a particular use of a copyrighted work is indeed fair use) on the defendant. At least as a practical matter, therefore, fair use can be considered an affirmative defense to claims of copyright infringement, with the alleged infringer bearing the burden of proof. This likely is based in history and legislative intent. Although the fair use doctrine was first codified as Section 107 in 1976, the doctrine had long been recognized by courts as a legitimate part of infringement analysis. Not wishing to disturb perhaps a century of jurisprudence on the doctrine, or the way in which courts treated assertions of fair use, Section 107 was intentionally left cryptic, as a sort of restatement of existing case law, with further refinement and interpretation again left up to the courts. A potentially helpful and very informative article on fair use is "A Pattern-Oriented Approach to Fair Use," 45 Wm. & Mary L. Rev. 1525 (see text beginning at 1549) March 2004.

Lawrence Locke
Portland, Oregon Received on Thu Feb 09 2006 - 04:50:45 GMT