The doctrine of fair use is a legal concept that permits the use of copyrighted material without

the permission of the copyright owner, under certain circumstances. The rationale behind this
doctrine is to strike a balance between the interests of copyright owners and the public interest
in accessing and using copyrighted material. Fair use allows for limited use of copyrighted
material for purposes such as criticism, commentary, news reporting, teaching, scholarship, and
research.1

The fair use doctrine is essential to promoting free expression and innovation. It enables
individuals and organizations to use copyrighted material in new and transformative ways that
benefit society as a whole. For instance, fair use allows for the creation of parodies, satire, and
other forms of social commentary that rely on the use of copyrighted material. It also enables
researchers and scholars to quote and cite copyrighted works in order to advance knowledge
and understanding in their respective fields2

Purpose and Character of Use

Fair use considers the purpose and character of the use. Transformative uses (where the
original work is significantly altered or repurposed) are more likely to be considered fair. Recent
cases have explored this aspect. For instance, in Google LLC v. Oracle America,Inc, 3 the U.S.
Supreme Court held that Google's use of Java APIs in its Android operating system was fair use
because it was transformative and served a different purpose.

Nature of the Copyrighted Work

Fair use analysis considers whether the work being used is factual or creative. Using factual
works (like news articles) is more likely to be considered fair. Fox News Network, LLC v. TVEyes,
Inc.4, the court found that TVEyes' service, which indexed and provided clips of Fox News

1
Copyright Law, Eleventh Edition (9781531018252). Authors: Craig Joyce, Tyler T. Ochoa, Michael Carroll. Carolina
Academic Press.
2
"Copyright and Cultural Heritage in Tanzania" by Prof. Mary Mushi
3
2021
4
2018

1
broadcasts for research purposes, was not fair use because it copied creative content (news
broadcasts).

Amount and Substantiality of the Portion Used

Fair use looks at how much of the original work is used. Using a small portion is more likely to
be considered fair. In Authors Guild, Inc. v. Google, Inc. 5, the court held that Google's
digitization of millions of books for its Google Books project was fair use because it only
displayed snippets of text.

Effect on the Market

Fair use analysis considers whether the use harms the market for the original work. In
Cambridge University Press v. Patton6, the court found that Georgia State University's use of
excerpts from academic books for educational purposes was fair use because it did not harm
the market for the books.

Despite its many benefits, the fair use doctrine has some shortcomings. One of the main
criticisms of the doctrine is that it is too vague and unpredictable. The determination of
whether a particular use of copyrighted material is fair is based on a number of factors,
including the purpose of the use, the nature of the copyrighted work, the amount of the work
used, and the effect of the use on the potential market for the copyrighted work. This means
that it can be difficult to determine whether a particular use of copyrighted material will be
considered fair, and individuals and organizations may be reluctant to use copyrighted material
for fear of infringing on the copyright owner's rights.7

Another criticism of the fair use doctrine is that it may be too permissive, allowing for uses of
copyrighted material that go beyond what is necessary for the purposes of criticism,
commentary, news reporting, teaching, scholarship, and research. This could potentially harm

5
2015
6
2016
7
Intellectual Property Law in Tanzania" by Dr. Joseph Mbele

2
the economic interests of copyright owners and discourage the creation and dissemination of
new works8

Other shortcomings are;9

Subjectivity

Fair use is inherently subjective, leading to inconsistent outcomes. Courts apply a case-by-case
analysis, making it challenging to predict outcomes. Some argue that clearer guidelines or
stricter criteria are needed to enhance predictability.

Lack of Clarity for New Technologies

Fair use struggles to keep up with technological advancements. Cases involving digital media,
AI, and the internet pose unique challenges. For example, the fair use implications of using AI-
generated content or deepfakes remain uncertain.

Risk Aversion

Fear of litigation often discourages creators from relying on fair use, even when their use is
likely permissible. This risk aversion stifles creativity and limits the doctrine's effectiveness.

In conclusion, while the fair use doctrine serves an important role in promoting free expression
and innovation, there is a need for greater clarity and predictability in its application. This will
help to ensure that the doctrine continues to strike a balance between the interests of
copyright owners and the public interest in accessing and using copyrighted material.

8
Copyright Law: Protection of Original Expression, Fourth Edition (9781531007713). Authors: Ryan Vacca, Sheldon
W. Halpern. Carolina Academic Press.
9
"Copyright Law in Tanzania" by Prof. Peter Kasanda 2013

3
REFERENCE

"Copyright Law in Tanzania" by Prof. Peter Kasanda 2013

4
Intellectual Property Law in Tanzania" by Dr. Joseph Mbele

"Copyright and Cultural Heritage in Tanzania" by Prof. Mary Mushi

Copyright Law, Eleventh Edition (9781531018252). Authors: Craig Joyce, Tyler T. Ochoa,
Michael Carroll. Carolina Academic Press.

Copyright Law: Protection of Original Expression, Fourth Edition (9781531007713). Authors:

Ryan Vacca, Sheldon W. Halpern. Carolina Academic Press.