a. Fair Use

A. Fair Use

The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.

In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

The purpose and character requirement is important in view of copyright’s goal to promote creativity and encourage creation of works. Hence, commercial use of the copyrighted work can be weighed against fair use.

The “transformative test” is generally used in reviewing the purpose and character of the usage of the copyrighted work. Courts must look into whether the copy of the work adds “new expression, meaning or message” to transform it into something else. (Abs-Cbn Corporation v. Gozon, G.R. No. 195956, 11 March 2015)¹

• The nature of the copyrighted work;

If the nature of the work is more factual than creative, then fair use will be weighed in favor of the user. (Abs-Cbn Corporation v. Gozon)

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

An exact reproduction of a copyrighted work, compared to a small portion of it, can result in the conclusion that its use is not fair.

However, there may also be cases where, though the entirety of the copyrighted work is used without consent, its purpose determines that the usage is still fair. For example, a parody using a substantial amount of copyrighted work may be permissible as fair use as opposed to a copy of a work produced purely for economic gain. (Abs-Cbn Corporation v. Gozon)

• The effect of the use upon the potential market for or value of the copyrighted work. (Sec. 185.1, IP Code)²

A negative effect on the potential market for or value of the copyrighted work weighs against fair use, but the court must consider all the statutory factors. (Abs-Cbn Corporation v. Gozon)

Note: That a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Sec. 185.2, IP Code)³

Doctrine of Fair Use

Fair use is a privilege to use the copyrighted material in a reasonable manner without the consent of the copyright owner. Ideas and themes, as distinguished from their protected expression, are not themselves protected by copyright. Fair use is an exception to the copyright owner’s monopoly of the use of the work to avoid stifling the very creativity which that law is designed to foster. (Abs-Cbn Corporation)⁴

No question of fair or unfair use arises, however, if no copying is proved to begin with. This is in consonance with the principle that there can be no infringement if there was no copying. It is only where some form of copying has been shown that it becomes necessary to determine whether it has been carried to an “unfair,” that is, illegal, extent. (Habana, G.R. No. 131522, 19 July 1999)⁵