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What if someone claims fair use of your intellectual property?

| Oct 25, 2021 | Intellectual Property

If you feel someone has breached your intellectual property (IP) rights, clarifying whether they have breached fair use rules is crucial.

While IP laws can give you a good level of protection, they may not stop others from using your work altogether. If the other party can prove fair use, they may be within their rights.

What does fair use of intellectual property mean?

If you take your case to court, the judge will consider four factors:

  • What is the work in question? For example, you have less right to ownership in terms of written work if you write non-fiction than fiction. The facts already exist so others can access them. Fiction requires more invention on your part.
  • What did the other party use it for? Someone using the works to make money is more likely to breach the copyright than someone using them for educational or non-commercial reasons. For instance, a teacher who takes your book and photocopies pages for a class can probably claim fair use. Someone who takes your book and reprints it to sell has less of a justification.
  • How much did they use it? Someone using your property only once is more likely to succeed in claiming fair use than someone using it repeatedly. Someone using a small piece of your work is more likely to succeed with a fair use defense than someone who copied the entire work.
  • How does their use of it affect you? Have you lost money because they used your intellectual property, or are you likely to? The greater the actual or potential loss, the stronger your case may be. 

If you are unsure whether someone has infringed your IP rights, seek help to assess the situation and understand your options. Disproving a fair use defense will require a thorough understanding of IP laws and the area you work in.