There is no formula that establishes the concept of fair use for copyrighted content. In America, four factors are used to determine on a case-by-case basis whether content can be used by third parties under the term 'fair use'.
The four factors used in the United States to determine 'fair use' by third parties are:
- The purpose and nature of the use, including whether the use is commercial or for non-profit educational purposes;
- The nature of the copyrighted work;
- The quantity and extent of the content used, in relation to the copyrighted work as a whole;
- The effect of use on the potential market for or value of the copyrighted work.
These four factors are more than just a checklist. They need to be analysed on an individual level and considered as a whole, but they can be weighed differently, depending on the case.
U.S. courts use these factors to decide whether 'fair use' qualifies, but remember that they can only do so after you have been sued for copyright infringement. The burden of determining the exception to fair use always lies with the person asserting it: the copyright owner does not have to prove the lack of fair use in a U.S. court.
Before deciding to use third party content covered by the U.S. 'fair use' concept on your own video platform, we recommend that you first carefully consider the consequences of that decision. A lawyer may be able to tell you what is and what is not allowed under Dutch law in the area of fair use and the right to quote.