Fair use

Fair use is the doctrine of United States copyright law that allows a court to hold lawful an unauthorised use of a protected work following an overall assessment of four factors listed in Section 107 of Title 17 of the United States Code. It is a general, open-ended and evolving exception clause, as opposed to the European and French system of exhaustively listed exceptions. It has no force in French law, but familiarity with it is indispensable in disputes and contracts with an international dimension.

The four factors

The American court considers, first, the purpose and character of the use, in particular its commercial or educational nature and its transformative character, that is, the addition of new expression, meaning or message. It considers, second, the nature of the work used, factual works being more readily open to fair use than works of fiction. It examines, third, the amount and substantiality of the portion used in relation to the work as a whole. It assesses, finally, the effect of the use on the potential market for the work or on its value, including the market for derivative works. No factor is decisive on its own, and the Supreme Court has made clear that transformative character is not sufficient where the secondary use pursues the same purpose as the original and competes with it.

Comparison with the European system

EU law rests on a closed list of exceptions, set out in Article 5 of Directive 2001/29/EC, which Member States may not extend and which the Court of Justice of the European Union interprets autonomously. French law adds a strict reading and the filter of the three-step test. Fair use offers greater flexibility and adaptability to new uses, at the price of an unpredictability that is resolved case by case before the courts. The fair dealing of the United Kingdom and Commonwealth countries occupies an intermediate position, since it makes the assessment of fairness subject to exhaustively listed purposes.

Practical issues for a French rightholder

A use that is lawful in the United States under fair use may constitute infringement in France, and vice versa, the applicable law being that of the country for which protection is claimed, under the lex loci protectionis rule. The debate on the training of generative artificial intelligence systems illustrates this divergence: the American courts assess it through the lens of fair use, whereas EU law brings it under the text and data mining exception and its opt-out mechanism.

Key points

Fair use is a general exception specific to American law, assessed by reference to four factors, including transformative character and the effect on the market. It does not exist in French law or in EU law, which recognise only exhaustively listed exceptions. For any cross-border use, check separately the lawfulness of the act in each country where it takes effect and never apply fair use reasoning to exploitation in France.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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