Fair Use is a legal principle in the United States that allows the use of copyrighted works without the permission of the copyright owner in specific circumstances. This principle enables users to use copyrighted works reasonably without infringing on the rights of the copyright owner.
The Fair Use Principle, one of the most important principles in the field of copyright in the United States, serves as a legal criterion to balance the rights of the creators of works and the rights of users of those works. Factors such as the purpose of use, the nature of the work, the amount used, and the impact on the market are carefully considered to assess whether the use of copyrighted works complies with this principle.
Typically, the evaluation of the use of copyrighted works under the Fair Use principle is based on four criteria:
- The purpose and character of the use, whether it is for non-profit or commercial purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Forms of using copyrighted works protected by Fair Use in a legitimate way include:
Education and Research:
- Teachers using a small portion of a book in the classroom for teaching.
- Researchers quoting short passages from a copyrighted work in their research papers.
Reporting and Criticism:
- Report writers or reviewers using small quotations from a work to illustrate their points.
- Film critics using short clips from a movie to illustrate their opinions.
Creativity and Performance:
- Artists using a painting or some pieces of artwork to create a new, creative work indirectly commenting on the original work.
- Musicians using a small portion of an original piece to create a new remix or a new composition.
News and Journalism:
- The press quoting from documents or copyright statements to report news or current events.
- News programs using short video clips from other news sources to report on an event.
Comedy and Satire:
- Filmmakers creating a parody of a famous movie, using elements of the original to create a new humorous work.
- Scriptwriters writing a satirical song using the music and lyrics of a famous song but changing the lyrics to create a new meaning.
It is important to note that the evaluation of whether a use case falls under the Fair Use principle often depends on the specific circumstances of each case and may require confirmation from a court if there is a dispute.
In essence, to use the Fair Use principle legally and legitimately, users need to adhere to the non-profit principle and show respect for the copyrighted work and its owner.
Fair Use principles in Vietnamese Intellectual Property Law
In Vietnam, unlike the United States, there is no formal system of Fair Use principles. Vietnamese copyright law focuses on protecting the rights of authors and copyright owners, with few flexible provisions akin to Fair Use. This has posed challenges for the use of works in situations such as education, research, and creativity.
This limitation constitutes a significant obstacle to the country’s development, leaving potential repercussions in the future that need to be addressed conclusively in the upcoming amendments to the Intellectual Property Law. However, achieving this goal may prove to be a considerable challenge for Vietnam, as the country grapples with finding a balance between encouraging innovation and protecting the rights of creators.
The development of protecting the rights of both creators and users requires careful consideration and may necessitate adjustments to Vietnam’s legal system to accurately reflect the principles of Fair Use in practice. Although not officially recognized, Vietnam’s current intellectual property laws also include provisions with similar content, as demonstrated in Article 25 of the 2022 Intellectual Property Law:
“Article 25. Exceptions that do not infringe on the author’s rights
1. Cases of using published works without permission and without paying copyright fees, but providing information about the author’s name and origin of the work include:
a) Personal copying of a work for scientific research, individual learning, and non-commercial purposes. This provision does not apply in the case of copying by copying devices;
b) Reasonable copying of a part of a work using copying devices for scientific research, individual learning, and non-commercial purposes;
c) Reasonable use of the work for illustration in lectures, publications, performances, audio recordings, video recordings, broadcasting programs for teaching purposes. This use may include providing within an internal computer network, with the condition that technical measures are in place to ensure that only the learners and teachers in that class can access the work;
d) Use of the work in the official activities of state agencies;
e) Proper citation of the work without distorting the author’s intention for commentary, introduction, or illustration in one’s own work; for writing articles, using in periodicals, in broadcasting programs, documentary films;
f) Use of the work in library activities not for commercial purposes, including copying stored works in the library for preservation, provided that this copy is marked as a preservation copy and access is limited according to library and storage laws; reasonable copying of a part of the work using copying devices for others’ research, learning; copying or transmitting preserved works for interlibrary use through computer networks, provided that the number of readers at the same time does not exceed the number of copies of the work held by the libraries, except when the rights owner permits, and does not apply in the case of works provided in the market in digital form;
g) Performance of stage, music, dance, and other forms of artistic expression in cultural activities, non-commercial propaganda activities;
h) Photographing, televising artistic, architectural, photographic, applied artistic works exhibited in public places to introduce the images of those works, not for commercial purposes;”
i) Importing copies of others’ works for personal use, not for commercial purposes;
k) Copying by re-publishing in newspapers, periodicals, broadcasting, or other forms of public communication lectures, speeches, or other spoken presentations made in public within an appropriate scope for the purpose of current information, except when the author declares copyright ownership;
l) Taking photographs, recording audio, video recording, broadcasting events for the purpose of reporting current events, including the use of audible or visible works in that event;
m) Persons with visual impairments, persons with disabilities unable to read printed text, and other disabled persons unable to access the work in the usual way, caregivers, and organizations meeting the conditions as regulated by the Government using the work as specified in Article 25a of this Law.
2. The use of works specified in paragraph 1 of this Article shall not be in conflict with the normal exploitation of the work and shall not unreasonably prejudice the legitimate interests of the author, copyright owner.
3. The copying specified in paragraph 1 of this Article does not apply to architectural works, works of fine arts, computer programs; the compilation, selection of works.
4. The Government shall provide detailed regulations on this Article.”
In addition to the cases mentioned above, Article 25a of the 2022 Intellectual Property Law also regulates cases that do not infringe copyrights for persons with disabilities.
You can see a list of Vietnam’s IP Firms here.