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Defenses Against Copyright Infringement

There are generally three defenses, or defense types, to copyright infringement: equitable defenses, statutory defenses, and the fair use defense.

Equitable defenses apply where the copyright holder has engaged in an activity relating to the copyright, which is not proper or fair. In Copyright Law, this is most often seen through the copyright misuse doctrine. In this defense, it is claimed that the copyright holder used the copyright to extend his/her rights beyond that which is granted by the statute and in ways that are anti-competitive. For example, the defense would be applicable if a person licenses his copyrighted software to another person and includes a term in their agreement that prohibited the licensee from implementing the software’s idea in a different form. If the licensee then implements the software’s idea in a different form, the infringement is defended by the fact that the licensor attempted to give himself copyright over the software’s idea, which is unprotectable by copyright, and therefore copyright misuse.

In §§108-121 of the copyright law, various compulsory licenses are granted to the public that allows infringement in certain circumstances. In return for the infringement however, a person using a copyrighted work through a compulsory license must give the copyright holder a statutory fee for using the copyrighted work. This is seen most often with musical compositions, where the compulsory license allows for others to make “covers” of the original work. But there also defenses for the reproduction of works by libraries and archives, for showing films in classrooms by teachers, for those who adapt works for disabled people, and others. Each respective section has requirements that must be met in order for the compulsory license to be valid.

The final defense, fair use, grants the use of works by certain individuals in certain circumstances, based on analysis of certain factors. Those factors, while not exclusive, are: 1) whether the defendant’s purpose in making the work was commercial and the nature of the work, 2) the nature of the copyrighted work, 3) the degree of material that was used, and 4) the effect on the original market by the new work.


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