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  1. #1
    Join Date
    Sep 2004

    Default How Does the Fair Use Defense Work

    I have just read your article entitled "Fair Use Doctrine and Copyright Law." I am a Legal Nurse Consultant in Phoenix, specializing in long-term care. I have worked as an expert witness on civil matters in this area of clinical expertise.

    The general consensus with people I have talked to has been that we may all be in violation of a fair use doctrine by providing articles to either the attorneys who hired us or to opposing counsel, whether we do this as a consultant or an expert. I have reviewed the four factors described in the article, and was particularly interested to learn that "the more fact-based a given work, the more likely it will be that 'fair use' applies."

    If I were to try to apply the factors, first, the character of the use is to support the opinion of an expert witness through published materials that would be considered authoritative in nature or accepted by the medical community as having established a standard of care. In this field, xperts have to provide some basis for their reasoning in their reports. They must provide some substantive evidence that their opinion is supported in the appropriate literature base to show not only that they know something is true, but how they know it to be true. That can be done only by citing to the literature.

    Second, the type of works we utilize are generally considered to be authoritative in nature. They may be published in a book put forth as practice guidelines by a particular medical organization, recognized as knowledgeable in a particular area of medicine, or may be written by experts who have researched a particular clinical area and are respected by their colleagues as experts in that particular clinical area.

    Third, the amount of the work that is used for any particular case or report varies significantly. When an expert uses a published work, it is critical that the intent of the author not be misrepresented by only quoting those portions of the book that would support a particular opinion. The work must be analyzed in its entirety so that the findings of the author are not corrupted by the use of excerpted material. That is not to say that it is necessary to quote or use the entire text, but it is important to provide enough so that the author's opinion is clearly and correctly acknowledged.

    I don't know how to look at the fourth factor. I recognize that in some areas of medicine, there are so few published experts that widespread use or copying may have a negative impact on the market for the original. I think it is important to consider who will be recompensed for the copy. I believe that when an author provides his work to a medical journal for publication, it is not the author who enjoys the fruits of his labors on matters of copyright fees. Instead it is the publisher who did not participate in the writing of the material. Does this mean that the author who actually wrote the material does not suffer a market loss in decreased sales of his published work?

    Our expert community does not want to violate copyright law and fair use doctrine, but in producing our expert reports for lawyers we are often asked to provide copies of all materials we used in formulating our opinion to opposing counsel. No one wants to be contemptuous of the rules of discovery yet we cannot afford the potential penalties of violating copyright and fair use laws.

  2. #2
    Join Date
    Sep 2004


    Dear Janice,

    I can give you my knee-jerk reaction: For the reasons you note, the copying you describe is probably not fair use.

    In terms of compensation, the copyright holder (whether that be the original author or the publication) is the party to which any compensation would be owed. Presumably, issues of fairness of compensation are resolved when the author transfers his copyright to the publication - whether or not the author got a good deal isn't a relevant consideration for a user of the copyrighted material.

    You may wish to branstorm among your peers, in conjunction with the lawyers who hire you, or instead brainstorm a bit here, to try to come up with a working solution.

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