WHAT IS FAIR USE?

What is fair use? What are the criteria for determining fair use? The amount of the original work used and its role in the new work. The size of the potential audience and the ability of the new work to affect the potential market value of an existing work. How to apply YouTube partner program?

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Fair use
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What is fair use?

Fair use is an exception to American copyright law that allows creators to use some limited amount of copyrighted content in their works for the purposes of parody, commentary, education or criticism without owner's permission. The list of purposes which refer to fair use are specified in the actual law: "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Fair use is not a universal law

Fair dealing exceptions are included in the copyright laws of many countries, however copyright laws in some countries become more clearly defined and restricted. In Japan, for example, fair dealing exceptions do not cover works like parodies or YouTube reviews.

As copyright laws vary in different countries, you should keep in mind that if you are involved in copyright dispute with content owners from different country, they will judge your use of their work by the laws of their own country.

What are the criteria for determining fair use?

The nature of the original work

If the nature of the original work is rather factual than creative, then using of this work would more often be considered as fair use. Music works are mostly creative in nature, though demonstration of different music styles might be an exception.

The amount of the original work used and its role in the new work

There is no determined figure of the proportion of the original work that can be used. In some cases, using ten percent of the original content would probably be considered as fair use. In other cases, if you re-use some part of the work that is meant to be a very crucial element, that might not be considered as fair use.

The following time factors are considered for determining fair use:
- Portion of the original work that is used
- Proportion of the original work that is used
- Importance of the portion of the original work that is used
- Necessity of use of that amount of the original work for the purpose of making your point
- Relation of the original work to your own content

The size of the potential audience and potential effect of the new work on the market value of the original work

Showing something to the group of twenty people is not the same as posting video on YouTube, where the potential audience could count millions. This criterion is used to determine the potential effect on the market value. The smaller the potential and actual audience the better chance that your use of the original work would be considered as fair use. It would be quite difficult to meet this criterion if you upload your work to YouTube, unless you would use a very small proportion of the song.

You should know that everything that is uploaded to Youtube can be downloaded directly or by means of dedicated web sites. Thus, if you upload some music online, it basically means that you offer it for free download to the entire world. And there are a lot of people who build their music collections by downloading mp3 soundtracks from YouTube videos.

The purpose of the use and the extent to which you have transformed the purpose of the original work

If the copyrighted work was used non-commercially, strictly for personal use or for commentary, criticism or education, the chances that this would be considered as fair use increase. However, sometimes even commercial use can be considered as fair use. Here is the example. If you make a review of a commercial movie using short cuts of the movie to demonstrate your point of view, this use of the copyrighted content can be considered as a form of commentary or criticism.

As for the music, if you just make the cover of the song with no transformation of the purpose, melody or lyrics, this cover version will not be considered as faire use. However, if you upload a song tutorial in which you teach subscribers how to play the song on the piano, you transform the purpose of the song from commercial to educational.

Even if your video is educational, it is important to use the original work only if it is necessary. If you teach people, for example, how to play a song, it is obvious that the use of the original song is necessary. But if you teach subscribers how to dance with a popular song in the background, the use of the song would not be related to the educational purpose and its use will not be considered as fair.

As you now understand, almost all non-copyright holders who upload to YouTube videos with copyrighted music would not meet the criteria of fair use.

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