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Of course this all depends on jurisdiction, but e.g. in the US for example fair use does not show up [oops, see note] in the limitations and exceptions in the c
by ska 3y ago
Of course this all depends on jurisdiction, but e.g. in the US for example fair use does not show up [oops, see note] in the limitations and exceptions in the copyright definition (like e.g. government use does), but relies on case law, the "fair use doctrine". This means quite literally it is a framework for understanding the defence of a particular use based on precedent: the defendant(s) argued it.
It's a bit of a quibble to differentiate between allowable infringement or exception, here, so i've edited original.
[note: 0xcde4c3db points out correctly that it does actually show up since 1976, but in a way the defers much of the definition back to case law, so same effect]
- munchler 3y agoI think it makes a difference, because it shifts the burden of proof. If fair use is a kind of infringement, then it’s up to the “infringer” to prove fair use. I think that’s ethically and legally backwards: the copyright holder should have to prove that the use was not fair.
- deleted 3y ago[deleted]
- ska 3y agoEthics aside, and again US specific, but the supreme court literally defines it as an affirmative defence. Even this is a bit murky though, as a district court has argued it goes beyond that.
- 0xcde4c3db 3y agoMaybe there's some nuance of your description that I'm missing, but fair use is codified as a limitation to copyright in US statute (although not until 1976) [1]. Application of it to any given situation is still heavily dependent on case law, though. [1] https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107
- ska 3y agoFair enough - I had forgotten that quirk in the US situation, it was added to statute in a way that doesn't really define it, so you are back to case law.