What is the practical difference between &quot;fair use&quot; and &quot;fair dealing&quot; in Copyright law? In the united-states, fair-use is a defence to copyright infringement. In other jurisdictions, particularly members or ex-members of the British Commonwealth such as united-kingdom and australia there is a fair-dealing defence. What's the practical difference?
fair-dealing is prescriptive, fair-use is not fair-dealing Copyright Acts in fair dealing jurisdictions enumerate what uses of copyright material are not infringements if the material is dealt with fairly (generally without actually defining fair dealing). For example, in australia, fair dealing can be argued if the use is for: news reporting; criticism or review; parody or satire; personal research or study; judicial proceedings or professional advice; and access by a person with a disability. If the use is outside one of those categories it is never fair dealing. However, even if it is within those categories the use must still be &quot;fair&quot;. fair-use There are no prescribed categories of use that are presumed to be fair. Instead, use is assessed against the ‘fairness factors’: the purpose and character of the use; the nature of the copyright material; the amount and substantiality of the part used; and the effect of the use upon the potential market for, or value of, the copyright material. Fairness factor 1: the purpose and character of the use This essentially comes down to whether the use is ‘transformative’ – that is, whether the secondary work adds something new with a further purpose or different character by way of a new expression, meaning or message. The transformation can be physical, purposive, or both. Fairness factor 2: the nature of the copyright material Relevant to this inquiry is whether the original work was unpublished, as authors have a right of confidentiality and to first publication, including the timing and form of publication. Reproduction of works of a factual nature may be more easily justified under this limb. Fairness factor 3: the amount and substantiality of the part used As a general principle, the more that is copied, or the more of the important part that is copied, the greater the likelihood that the secondary work will become a substitute for the original and reproduction will be harder to justify. Fairness factor 4: the effect of the use upon the potential market for, or value of, the copyright material Here, the copyright holder’s right to licence their work and create derivative works is relevant. A secondary work that usurps either the market of the original work or a derivative market tends to cause greater harm to the copyright holder, in which case reproduction becomes more difficult to rationalise. Thanks to Justine Munsie and Tara Koh Flexibility vs uncertainty Because fair use is judged on a case by case basis, it's more flexible than fair dealing and capable of being readilly applied to new technologies and modes of expression. The flipside is that it is less certain whether any particular use is fair use; the 'bright lines' of fair dealing make this less of a problem. However, in practice, any use that is fair dealing is almost certainly fair use but the reverse is not true. Fair use is broader and encompasses areas that are simply closed to fair dealing.
Broadly speaking, the difference is the "sharealike" clause of CC-BY-SA. Any derivative of a CC-BY-SA work must itself be licensed CC-BY-SA, whereas a derivative of an "MIT with attribution" work can be under any license the author wants. There are a number of other differences in the fine print (eg. CC forbids DRM, where MIT doesn't), but that's the big one.
You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room".
Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated. You can burn a book and shred a newspaper. Neither of those actions is making a copy. Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue.
Another term sometimes used in place of &quot;copyright troll&quot; or &quot;patent troll&quot; in order to be less pejorative is &quot;non-practising entity&quot;1 (moreso in the patent context). These terms refer to a family of characteristics, not always present in every particular instance. These are not well-defined legal concepts but are used colloquially (mostly in academia and journalism) to describe a kind of behaviour in the legal system. Some legal opinions have used the term &quot;troll&quot;.2 And some statutes even aim to assist defendants subject to claims from trolls.3 Some features: they do not licence or produce the material themself they adopt aggressive, vexatious, and frivolous litigation tactics to attempt to get high value settlements they initiate claims or demands beyond the scope of their rights or despite fair use defences litigation awards and settlements are a significant part of their revenue Because these terms (copyright troll, patent troll, troll, non-practising entity) do not have a precise meaning, good academic work that uses such a term will provide a definition of how they are using the term within their work.4 1. This is also somewhat imprecise, but by non-practising entity, this refers to entities that do not &quot;practise the patent.&quot; This is an odd phrase, but to practise a patent means to actually use, make, or sell the patented invention or products incorporating the patented invention (as opposed to merely excluding others from doing so). 2. I haven't done my own independent research for this and am not providing a list of cases, but see footnote 17 of Brad Greenberg, &quot;Copyright Trolls and Presumptively Fair Uses&quot;, 2014. It lists a few judicial opinions from the United States using the term, often in quotation marks. The opinions relate trollness to &quot;costly and expansive discovery to need to oppose a fair use defence&quot;, that one party was not a troll because it &quot;actually produced the [works] and did not merely acquire the copyright therein to enforce against infringers&quot;, that &quot;copyright trolling&quot; uses litigation &quot;not to make the copyright owner whole but to provide a new revenue stream&quot;. There are likely many more examples. 3. See for example Washington State's Patent Troll Prevention Act. They use the term only in the short title because of its popular connotation. The term does not appear in the text of the statute. Instead, it prohibits what is considered &quot;bad faith&quot; assertions of patent infringement and includes a description in a preamble of what the legislature considers the nuisance to be. 4. Greenberg's operational definition is: &quot;a copyright owner who: (1) acquires a copyright—either through purchase or act of authorship—for the primary purpose of pursuing past, present, or future infringement actions; (2) compensates authors or creates works with an eye to the litigation value of a work, not the commercial value; (3) lacks a good faith licensing program; and (4) uses the prospect of statutory damages and litigation expenses to extract quick settlements of often weak claims.&quot;
General Rules The rules on this vary somewhat by country. In some counties the is no trademark protection unless a mark is formally registers. In others use &quot;in trade&quot; offers a degree of protection even in the absence of registration. The US follows the second rule. Some of Europe follows the first. But in pretty much all countries trademarks (aka trade marks) are only protected when they are &quot;used in commerce&quot; and are only protected against other uses &quot;in commerce&quot;. This mans that a phrase or design or other possible mark is only protected when it is functioning as a mark, that is it is used by the maker to identify or advertise a product or service (hereafter I use &quot;product&quot; to mean either or both). Moreover a mark is only protected when an alleged infringer uses the mark (or a similar mark) in such a way that people might reasonably be confused into thinking that the infringer's product comes from the same source as the products of the owner of the mark, or is approved, sponsored, or endorsed by the owner of the mark. A simple literary or pop-culture reference is normally not trademark infringement. This is both because a well-known phrase is not usually protectable as a mark at all, and because a reference to it is normally not infringement, even if the mark is protected. The likelihood of confusion is a very important concept in trademark cases. Examples The phrase &quot;Elementary, my dear Watson&quot; Is often used as a reference to the Sherlock Holmes stories and novels. But it was never used to brand or advertise those stories, so its use in a novel or video game now would not be infringement. Even if a game used that phrase as a title, it would not be infringement, because the phrase is not protected. All this would still be true even if the Sherlock Holmes stories were still being published. The tagline &quot;In space, no one can here you scream&quot; was used extensively to advertise the movie Alien. It had some protection as a mark (in the US), and might well have been registered for fuller protection (I haven't checked the US register of trademarks, or any other for this phrase). A game titled with this phrase might well be infringing. A game where a character speaks the phrase at some point probably will not be infringing. Caution All that said, exactly where the limits of infringement lie depend on the detailed factual situation. Before investing sizable amounts of money or time and effort on such a project, it might be wise to consult a lawyer knowledgeable about trademark law in one's particular jurisdiction, and make sure that the risk of suit is not to great for one's tolerance.
No, it's not fair use. It's also not nominative fair use (the fair use equivalent for trademarks) as another answer suggests. Why is it not nominative fair use? There are three conditions for nominative fair use (taken from Wikipedia): The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol). The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags. The first two conditions really rule out any right to use a company's logo on a resume. Instead, the careful reader will notice that nominative fair use is actually the legal basis for your right to name the companies on your resume at all.
In principle, every single copyright license allows someone to do something that plain copyright law wouldn't allow them to do. Very often there are conditions: They are allowed to do X, which plain copyright law wouldn't allow them to do, but only if they fulfil some condition Y. The consequence is that if they do X without fulfilling the condition Y, then they are committing copyright infringement. Details are different from country to country. In the USA, you cannot force someone to do what the license asks the, to do, but if they don't, it's copyright infringement, and you can sue them and ask for damages. Other countries see it as a contract, where by doing X they agree to do Y as well, and not doing it would be breach of contract. Often with the interesting effect that you as the copyright holder cannot prove that they accepted the license, so in court they can tell the judge whether they were committing copyright infringement or whether they are in breach of contract. You can of course use your own license - however, one of the standard licenses mean the license was likely checked by a better lawyer than you would want to pay, and is much more likely to achieve what you want to achieve. If there were any problems say with the Creative Commons license, people would have found those problems and fixed them a long time ago.