Blog, Copyright, IP industry

Copyright and the Fair use doctrine

Definition of Copyright

Copyright is a type of intellectual property, that provides exclusive rights to its owner’s to make copies of the original work. The very basic definition of copyright is the right to copy. This means that work can be reproduced only after the consent of its original creators or anyone they have given authorization. The creative work can be in a literary, artistic, educational, or musical form.

Fair Use & The Four Factors for Determining the Fair Use

The fair use doctrine is described more precisely as the troublesome and the most problematic doctrine in all of copyright law. It’s because it is an open-ended doctrine. The Federal courts of the United States created Fair Use doctrine from a very famous 19th decision by Justice Joseph Story known as Folsom versus Marsh. The case was related to copywriting a publication relating to George Washington’s letters and copies of it. Justice Story formed the basis of the modern fair use doctrine which considers various factors to determine whether the copied property amounts to infringement or not, while considering the purpose and overall circumstances.

It is codified at 17 U.S.C. §107 and states that “the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Therefore, there are no hard-and-fast rules, only general guidelines and varied court decisions, this was done to provide expansive meaning to the definition of fair use.

Judges use four factors for measuring and determining the fair use to resolve the disputes related to fair use. These factors are not definitive; these are only the guidelines that courts are free to adapt to a particular situation on case-by-case basis. Alternatively, a judge has freedom when determining the fair use, therefore the outcome can be hard to predict in any given case. In each instance, all four factors have to be applied to the copying, and then once the factors are applied and weighed, one can determine whether it’s fair use or not. The four factors judges consider are:

  1. What is the purpose and character of the use: The fair use doctrine in most cases will be fair for Non- Commercial uses and Non-profit educational uses, whereas, this is not entirely true all Non-profit education and Non- Commercial uses. Transformative use may qualify for fair use. Transformative use may be for purpose such as scholarships, research, or education. Also, parody may classify as fair use because the parodist transforms the original work.


  1. What is the nature of the copyrighted work: When a new work is being made from a copyright it’s better to copy from published work than unpublished work. The scope of fair use is quite less for an unpublished work as compared to published work, since the author has right to control the first appearance of their expression in public. More particularly if the facts are copied from any copyrighted material it still may come under fair use.


  1. What is the amount and substantiality of the portion used: This factor is defined on the basis of the amount that is copied. The amount copied is directly proportional to the chance of fair use of any copyrighted work. More the amount copied lesser will be the chance of getting under fair use, similarly, lesser the amount copied more will be the chance of fair use of product. Further, even if you take a small portion of a work, your copying might not be fair if you copy the core or the most important aspect of the work.

  1. What is the effect of the use upon the potential market of the copyrighted work: This factor considers if there is any depreciation in the income of the copyright owner or undermines a new or potential market for the copyrighted work. If the work competes directly with the original work a law suit may be filled.



Fair use doctrine is a very important aspect of the copyright. It helps to strengthen the protection that is given to the citizens. The fair use doctrine helps to provide wider scope to the federal courts and provide better judgement. It helps to provide a more adaptive approach on the case-by-case basis.


Hitesh Dhiman

Effectual Knowledge Services Pvt Ltd

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Blog, Copyright, India, Intellectual Property, IP industry

Protecting AI inventions

When AI was first introduced, one of the founding fathers of the technology Professor John McCarthy said that: “AI is the science and engineering of making intelligent machines, especially intelligent computer programs.” Since then, there has been a  vast amount of breakthrough research in the industry, which is evident from the fact that almost 386,428 related patent applications have been filed in this field (according to the Derwent database).

AI as an inventor

From tools and services to products and consultancies, AI has created a number of revenue-generating opportunities. It has already simplified a number of tasks and now, with the help of neural networks, it is inventing new ways to solve problems. Further, certain privileges have been granted to corporate entities (eg, Facebook and Google) so that they can defend themselves in court. It therefore follows that AI should be able to own its patents. However, debate is ongoing and requires considering where the line between creation by human and machine should be drawn and how much (or little) human input or guidance is required.

Recently, there was a case where the EPO refused European patent applications EP18275163 and EP18275174, which designated DABUS – a machine described as “a type of connectionist artificial intelligence” – as an inventor. One application was for a new type of beverage container based on fractal geometry and the other was for a device for attracting enhanced attention signals, which could be helpful in search and rescue operations. Similarly, the USPTO and UKIPO have disqualified patent applications on the grounds that a non-human cannot hold inventorship as per these countries’ laws.

Protection for AI inventions

When IP laws were formed, it was beyond imagination to consider naming a machine as an inventor. So how can AI inventions be protected in the current IP system? For the time being, this falls under copyright and trade secret laws.


According to basic guidance in the Compendium of US Copyright Office Practices, works produced by a machine with no creative input or intervention from a human cannot be given authorship. Though the computer programs responsible for autonomously generating works are the result of human ingenuity, their source code may be copyrighted as a literary work under the US Copyright Act. In other recent cases, the Shenzhen Court ruled that AI-generated articles are entitled to copyright protection. The Shenzhen Nanshan District People’s Court recently ruled in favour of plaintiff Shenzhen Tencent Computer System Co Ltd in its claim for copyright infringement against Shanghai Yingmou Technology Co Ltd for an article written by AI software Dreamwriter. Ownership and accountability of AI for copyright IP protection is still under debate and is being discussed in many IP offices.

Trade secrets

AI models, tools and data can be kept as trade secrets. Currently, trade secret laws may be used to protect any derived data or additional software code created by the AI. This offers the competitive advantage of avoiding a need for public disclosure of information. Further, proprietary technology lasts longer than patent protection. Trade secrets may provide the broadest scope of IP protection, including information such as algorithms, source code, methods, techniques, processes and the way a business utilises AI to implement machine learning. Also, trade secrets provide immediate protection, without the costly or lengthy registration process required by other forms of intellectual property. Trade secret protection might be well-suited for rapidly developing and improving AI inventions.

Reaching new heights in the AI world

The right AI innovation can bring a company leagues above the competition. Trade secret and copyright protection should be considered when developing an effective AI protection strategy. As more organisations are investing in the development of a robust and well-structured AI protection strategy, they will be in a leading position to enforce their IP rights. Further, when infringement and misappropriation occur, they will be prepared and – more importantly – they will be in an advantageous position to prevent unlawful conduct.

For further information contact:

Prashant Singhal
Effectual Knowledge Services Pvt Ltd
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