Fair Use

My IP professor always emphasizes that intellectual property laws are created to promote common good. IP laws strive to protect the creator’s property rights and their exclusive right to control use, distribution and reproduction of their work. Protection is given for the creators to maximize the economic benefits that they can derive from their works, thus, encouraging them to create more. However, IP laws also strive to give the public reasonable access to these creations to promote the art, literature and culture, and also encourage the formation of new ideas and concepts. Too much restriction to access will result to stagnation because ideas are recognized building-blocks of new ideas. Thus, our IP Code adopted the principle of “fair use” to maintain the balance between protecting private interest of creators and promoting the public interest. Use not falling within this criterion is considered an infringement.

According to Section 185 of our Intellectual Property Code, in determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or valued of the copyrighted work.

In the United States, the downloading of music by Napster users was found, in the case of A&M Records, Inc. v. Napster, Inc. to be a direct infringement of copyright held by the recording companies. The Court determined that, even though Napster was not charging for its service and users were downloading the music for their personal use, the downloading was not a "fair use" under the United States Copyright Act. It was found that "repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute commercial use." The copies were found to have been made to save the cost of purchase. This practice is cited particularly by the recording industries as a factor in the significant drop in music sales.

The concept of fair use has not been applied by our courts in resolving issues involving infringement committed through the use of technology. True, our IP jurisprudence has only ruled on infringement in our physical world, but with the rampant violation of intellectual property rights in the internet world, certainly, the wait will not be too long.