1. The Purpose and Character of the Use
This criterion is used to distinguish whether the use is of a commercial nature or is for, e.g., non-profit educational purposes. For example, using a photograph of a country view on a commercial site offering tours is not considered fair use because it is used as an encouragement to book a trip. Remember that the actual profitability does not make any difference! This kind of use is not considered a fair use even when the publisher does not make any profit! In this case, the intention of making money is considered as commercial use. Contrary to that, a student can use a copyrighted photograph in his school presentation. Also, inserting replicas of paintings into a student’s arts coursebook for educational purposes is considered fair use in most cases. Of course, not all educational purposes are considered as fair use – e.g., a teacher cannot copy a whole coursebook for his/her students.
On the Internet, fair use can be recognized in some educational platforms and free presentations but not in paid online courses or presentations made by companies to attract potential customers. Most probably, a review of a copyrighted work on YouTube would be considered a transformative work and fair use but a photograph on a company’s Instagram profile is considered an infringement.
When analysing this criterion, courts are always deciding about the transformative purpose, meaning if the use led to creating something new – e.g. new information, comment, taunt. An example of when the European Court did not present the progressive approach and did not rule in favour of the students is a case from North Rhine-Westphalia in Germany. The case revolves around the publication on a school website a pupil’s presentation that included, on an opening slide, a picture from an online travel portal – published in accordance with the law. The court did not address the argument stated in accordance with the right to education – Article 14 EU Charter. Instead, it ruled that posting of that work on a school website made it available to all visitors of that website. The balance between the right to education and the protection of the right to intellectual property, covered by the Article 5(3)(a) InfoSoc Directive, which ‘provides for the exceptions or limits [sic] to the rights (…) so as long it is for the sole purpose of illustration for teaching or scientific research and to the extent justified by the non-commercial purpose to be achieved’ was somehow missed.