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)
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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