v.23 #1 Questions and Answers

Column Editor:  Laura N. Gasaway  (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599;  Phone: 919-962-2295;  Fax: 919-962-1193) 
laura_gasaway@unc.edu    
www.unc.edu/~unclng/gasaway.htm

QUESTION:  A university librarian asks why there is a debate over whether fair use is a defense or a right and whether it makes any difference.

ANSWER:  This is one of the central debates in copyright law and there is not an absolute answer.  (Sort of like “what is the meaning of life?”).  In law, a defense is something that may be raised by a defendant to defeat the claim made by the plaintiff in a lawsuit.  In section 107 of the Copyright Act, in order to determine whether the use is a fair use, courts are directed to evaluate a particular use in relation to four factors.  This makes it clear that fair use is a defense to copyright infringement because a court is involved only in the context of litigation.  So, fair use certainly is a defense to a claim of copyright infringement, but it is also more.  Often fair use is defined as an affirmative defense which means a new fact or set of facts that operates to defeat a claim even if the facts alleged by the plaintiff in the claim are true.  In other words, the defendant did make the copies of a protected work, but the purpose of the use, amount of the work copied, etc., are such that a court would find that the use is a fair use, and this defeats the infringement claim. 

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