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Published:
2018-09-18 12:15:20 -0400
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We've written before in this space about Articles 11 and 13 -- fan-unfriendly legal proposals in the EU. On September 12, the European Parliament voted in favor of those proposals. Is it bad? Yes. Is it the end of the story? No. Is it going to change the AO3? Probably not. What can you do about it? Read on.

Articles 11 and 13 impose new requirements on sites that host user content, like the AO3, Tumblr, YouTube, and the like. In the United States, the Digital Millennium Copyright Act protects these sites from some kinds of copyright liability, so that the sites aren't responsible for infringing content posted by their users unless the sites know it's there and that it's infringing. That's why most sites have "notice and takedown" policies: if they're warned about infringing content, they have to take it down -- and they're allowed to take fair use into consideration when they decide whether or not to take a work down. Articles 11 and 13 put the burden of preventing infringement on sites, rather than users, and make some very incorrect assumptions about the ability of algorithms to identify what uses infringe and what uses are non-infringing fair uses.

Why are these Articles bad for fans? They make sites liable for infringing material that their users post. They also create new copyright-like rights for press publications, and they make sites liable for "snippets" of press publications that their users post. These rules expect that instead of waiting to be warned about infringing material, sites would have to put in filters that prevent the uploading of infringing material. There is no exception for user-generated content, and as we've seen in other settings, the sort of algorithms that upload filters would have to use are notoriously over-inclusive. That means that the filters would often not be able to tell the difference between transformative fanworks (which generally don't infringe, often because of fair use and related principles) and piracy (which does infringe).

The language that was passed on September 12 contains nonprofit exceptions, as well as exceptions for small businesses. Based on these exceptions, the AO3 would not have to engage in filtering -- so nothing is likely to change around here! -- but other sites that fans use, like Tumblr, YouTube, and Wattpad, will be affected. And despite the exceptions, nonprofit sites (like the AO3) and small businesses that use commercial cloud-based services like AWS (Amazon) or Google’s Cloud for storage could still face massive increases in the cost to stay online, get server space, etc. It's impossible to predict the impact on sites like Goodreads and Pinterest. YouTube has posted a statement on the problems posed by the law, and it looks like they're going to keep fighting against the worst possibilities for its implementation.

So this is bad news. But it's also not the end of the story!

The Articles are not law yet. There are still opportunities to fight them. They go up for a final vote in January, and there are opportunities for change between now and then. If the Articles do pass in January, the process of "national implementation" would then begin: each country in the EU would begin to make its own laws based on the Articles. Every country's laws might implement the Articles quite differently -- some good, some bad. There will be battles over specific wording in every country.

So if you’re a citizen or resident of an EU country, reach out to your MEPs. This chart shows how each party voted. The SaveYourInternet site has an interactive tool that shows how MEPs in each country voted, and how to contact yours. This page explains how to see how your particular MEPs voted. If they voted against Article 13, contact them to thank them for doing the right thing! If they voted for it, tell them why they made the wrong choice and should change their mind when the January vote happens. Explain to them how this law will impact you personally; tell your story. Get involved with a national organization that is fighting against this law, and one that’s ready to push back against it in the courts – especially where it can curtail free speech, which is a fundamental right held by all EU residents.

As our friends at FYeahCopyright put it: "Pushing against this Directive doesn’t mean you support piracy or counterfeiting of creative works like films, books or photographs. It means, though, that you want creativity, science, communications and education to thrive online, just as they have for almost thirty years."

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Published:
2018-09-08 10:42:22 -0400
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Back in July, fans and allies helped convince the European Parliament to schedule a vote rather than automatically approving some fan-unfriendly proposals. Now it is time to act! The European Parliament will be voting on these proposals in a few days. The short version of "what can I do" is: Contact your MEP now. For the longer version, and a discussion of why these proposals matter to fans, read on!

What Are Articles 11 and 13, and Why are They Bad for Fans?

Fandom loves and thrives on the Internet, and the Internet loves and thrives on fandom! So much of what makes fan communities and fan creativity work so well are the same things that make the Internet what it is: people sharing their transformative creations and linking to things that drive their interests. We post vids, gifs, fics, filks, and so many other wonderful, creative things! We link to news stories about our favorite shows, writers, performers, and trends! We use these things to find ourselves and communicate with people all around the world.

The proposals under consideration--Articles 11 and 13 of the Proposal for a Directive on Copyrights in the Digital Single Market--could make all of these things harder to do. Both proposals would govern how the EU approaches copyright on the internet. Article 11, often called the "link tax" or "ancillary copyright," would effectively make it infringing for websites to use quotes or snippets to link to copyrighted press publications. Article 13, often called the "censorship machine," has to do with when websites are liable for material posted by their users, and whether and when websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. The precise language of these proposals is still being debated, so it's hard to predict exactly what sites would be included, and what they would make those sites do. But if they pass, they will definitely require some sites to prevent some kinds of linking and to engage in mandatory content filtering. Some versions of the proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules would take into account the nature of the works hosted, but not take into account a site’s nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this Reddit AMA that a few top European intellectual property professors did in June, and the Copyright 4 Creativity Coalition’s CopyBuzz post about the most recent "compromise" proposal.

What does that mean for fans? Non-commercial transformative fanworks would still be legal to create, post and view, but they could easily get caught in mandatory algorithmic filters and never even make it to the Internet. Limitations on how sites can contain links to press publications can make it harder for fans to find fannish information and content. Rules that impose liability on websites for their users' materials could easily shut some platforms down and prevent new ones from arising. So while these provisions are about Internet platforms, they could make it harder to find and post (non-infringing) fanworks online.

What can fans do?

Between now and the September 12 vote, your voice matters!

For Europeans, that means that the best thing you can do right now is to Contact your MEP and let them know that this matters to you! Let them know that you don’t want websites to be liable for material posted by their users. Let them know that you don’t want algorithms and machines to be filtering internet content for infringement--machines that won’t understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

For people outside Europe, there is (alas!) much less to do--petitions and calls (etc.) to MEPs from outside the EU aren't helpful at this stage--but please signal-boost this issue on your social networks so that Europeans know to get involved.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

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Published:
2018-06-29 11:24:52 -0400
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UPDATE: Great News! On July 5, the European Parliament voted against automatic approval of Articles 11 and 13. The Parliament will now consider amendments and vote again in September. So there is more work to do, but this vote made that work possible. For more information about the issue, read on.

OTW Legal has gotten a lot of questions about a recent development in European Union Copyright Law: the Legal Affairs (JURI) committee of the European Parliament adopted a "Proposal for a Directive on Copyrights in the Digital Single Market." This proposal contains some fan-unfriendly provisions, known as "Articles 11 and 13." Nothing is set in stone yet: Now that the JURI committee has approved the provisions, they will go to the European Parliament, after which there may be an opportunity for further debate. But what are these provisions, what would they mean for fans if the European Parliament approves them, and what can fans do right now? The short version is: Contact your MEP now. For the longer version, read on.

What are Articles 11 and 13?

Articles 11 and 13 would govern how the EU approaches copyright on the internet. Article 11, known as the "link tax," would effectively make it infringing for websites to contain links to copyrighted press publications. Article 13, known as the "censorship machine," has to do with whether websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. Because there may be opportunity for further debate on the language, it is hard to know exactly what impact they will have if they make it through the next step. But if they do, they will govern what internet hosts have to do (sites like YouTube and Tumblr and possibly the AO3), not what fans have to do. The provisions are about linking and filtering for infringing material; noncommercial transformative fanworks will still be non-infringing. The impact for fans would be indirect--rules against linking to copyrighted press publications and rules requiring filtering for infringing material may make it harder to find and post (non-infringing) fanworks online.

Beyond the general facts that they will make fanworks harder to find and post, it is difficult to predict exactly the impact these provisions would have, because it is difficult to predict precisely the language that they will pass. The language that JURI adopted is not published in any official form, and the language is hotly debated. Some proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules take into account the nature of the works hosted, but do not take into account a site's nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this fantastic Reddit AMA by a few top European intellectual property professors. (In fact, the OTW legal team knows them and can vouch for their expertise!)

What can fans do?

We know that MEP Julia Reda plans to challenge the JURI committee's result in the upcoming Plenary Session of the European Parliament on July 2-5, 2018. Between now and then, your voice matters!. To force a plenary vote, at least 76 MEPs need to decide that a vote is called for. After that, a majority of MEPs would need to vote to reject the JURI committee's position. To learn more about the procedures, check out the #SaveYourInternet site.

For Europeans, that means that the best thing you can do right now is to contact your MEP and let them know that this matters to you! Let them know that you don't want the link tax. Let them know that you don't want algorithms and machines to be filtering internet content for infringement--machines that won't understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

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Published:
2018-06-08 12:24:53 -0400
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OTW Legal has been busy working on three advocacy projects around the world--in Canada, Australia, and the European Union. We want to thank you for your help in Canada, and let you know what’s happening and what you can do to help in Australia and the European Union.

Canada

Thanks to the many amazing stories we received from Canadian fans, we submitted a comment to the Canadian Parliament’s copyright law review about the power and benefit of laws that allow and promote transformative works. You can find our submission here.

Australia

Now we’re working on a submission for Australia! The Australian government is evaluating Australian copyright law and is considering expanding fair dealing provisions or adopting a fair use standard. OTW Legal is writing in support of these changes and would love your help. If you’re Australian and have expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works that would benefit from flexibility in Australian copyright law, we’d love to hear your stories. Please send them by June 25 by using our contact form. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.)

European Union

OTW Legal and our allies have been active in fighting on fan-unfriendly legal proposals in the EU. Since these proposals were introduced in 2016, OTW Legal has submitted comments opposing them and has joined in calls for action against them. We’ve managed to hold them off so far and encourage some revisions, but a key vote will be happening in the European Parliament’s JURI committee on 20/21 June that could have a significant impact on the Internet and fan sites. In particular, two provisions of the current proposal would be bad for fans. Article 11 would impose a "link tax" that would make it more expensive for many websites to operate, and Article 13 would impose mandatory content-filtering requirements on websites that host user-generated content. These provisions have been hotly debated and revised a bit since the last time we reported on them. (For more on recent revisions and debates, see these discussions by the Electronic Frontier Foundation and the Hogan Lovells Firm) But despite revisions, they’re still bad deals for fans. Importantly, they don’t preserve the "safe harbors" that websites rely on to operate, and they don’t include user-generated content exceptions.

Without safeguards for user-generated content, Article 13 would require your favourite websites to implement systems that monitor user-generated content and automatically remove any content that could potentially infringe upon copyright, giving publishing giants the power to block your online expression. Sites like YouTube, Tumblr, GitHub, Soundcloud, etc., could be required to block the upload of content based on whether it has been "identified" by big corporations, rather than based on its legality. The law is still being debated, and it is difficult to predict how it would impact the OTW’s projects, including the Archive of Our Own, if it is passed. Regardless of how this vote comes out, the OTW will work as hard as we can to keep the Internet fan-friendly. But we need your help. The most effective thing you can do right now is contact your Member of European Parliament. You can use one of these tools to e-mail your MEP or call your MEP to tell them that having user-generated content on the internet is important to you.

Here’s what you can tell them: Without safe harbors for user-generated content, Article 13 of the Copyright Directive would stifle free expression on the Internet. We don’t want mandatory filtering. Algorithms don’t understand limitations and exceptions to copyright like parody, public interest exceptions, fair use, or fair dealing, and we don’t want our non-infringing videos, website posts and art blocked because of a biased algorithm created by big corporations. We want the law to protect user-generated works, not harm them.

OTW Legal will keep fighting for fan-friendly laws!

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Published:
2018-05-17 12:42:48 -0400
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Spotlight on Legal Issues

Are you Canadian? OTW Legal wants your stories about being a fan!

Over the years, OTW Legal has spoken for fans and fanwork creators in comments to governments around the world including the U.S., the E.U., Canada, Australia, and South Africa. And we want your help to keep doing that! The Canadian government is currently conducting a review of the Canadian Copyright Act. The Parliamentary Committee responsible for the review has already received some comments complaining about fan-friendly laws like the 2012 expansions to fair dealing and the User-Generated Content exception to copyright infringement. OTW Legal wants to show Parliament the other side of the story: the important value that Canadian fanwork creators get from being able to create transformative works.

Are you Canadian and have you expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works--works that are legal to create in Canada because of fair dealing and the UGC exception? If so, OTW Legal would love to hear your stories. We need to submit our comments soon, so please send our Legal Advocacy team your stories about how being able to create fanworks and belong to fan communities has helped you, by the end of May. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.) We’ll use your stories to support our legal advocacy work in Canada and worldwide.

Thanks!

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Published:
2018-04-26 13:24:00 -0400
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Outlines of a man and woman speaking with word bubbles, one of which has the OTW logo and the other which says 'OTW Announcement

A few months ago, we learned that someone had registered the domain name archiveofourowno.com and copied the front page of Archive Of Our Own at that url; they even included a login screen that mimicked the AO3 login.

We immediately went to GoDaddy--the registrar of the domain name--and asked them to remove the website, because it violated their bar on phishing (that is, tricking someone into giving away login or other personal information). GoDaddy's Terms state that they will not allow a site to impersonate "a legitimate, trustworthy site" by tricking "visitors into providing them sensitive information like logins." However, GoDaddy never responded and did not take the site down.

Therefore, in January, the OTW Legal Committee initiated a proceeding with the World Intellectual Property Office with the goal of stripping the domain name from the infringers. In April, after the infringers had failed to respond, the WIPO Panel ruled in our favor. The panel held that Bradley Binkley of Chicago, who had registered the domain name, had "in all likelihood... registered the disputed domain name with the aim of exploiting and profiting from the Complainant’s mark, through the impersonation of the Complainant in furtherance of a fraudulent phishing scheme." As a result, the panel voided Binkley's registration of the name, and the OTW is currently in the process of setting up the domain name to point to the main Archive of Our Own page.

One important takeaway from this situation is that you should never enter in your AO3 login information unless you are completely sure that you are on the real archiveofourown.org site. While we also own the domain names archiveofourown.net and archiveofourown.com they redirect you to archiveofourown.org, and that is the only site where you should enter your AO3 login information. And if you go to any site and find yourself needing to login when you thought you were already logged in, it's possible that you're on a phishing site rather than a genuine site--double check the URL to make sure!

If you visited archiveofourowno.com and entered your login information there, you should change your password on AO3, as well as any other sites where you use the same username/password combination, and run a virus-checker on your computer. We attempted to review the code from the phishing site to see if there was anything malicious; we didn't see anything obvious but it's better to be safe than sorry.

If you have more questions about the work done by the all-volunteer Legal Committee at the OTW, you can visit the Legal Advocacy page on our website.

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Published:
2018-04-13 12:32:42 -0400
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spotlight on legal issues

Lately, OTW Legal has received many queries and concerns about recent U.S. legislation known as FOSTA/SESTA. We want to reassure you that the law as it currently stands does not apply to fiction, and therefore should have no impact on the Archive of Our Own.

The term “FOSTA/SESTA” refers to legislation that has been passed by U.S. Congress and the Senate, purporting to combat what it describes as “sex trafficking.” The legislation would make it a crime to operate an interactive computer service “with the intent to promote or facilitate the prostitution of another person.” (That is, the exchange of sex for money.) Under the law, sites that “knowingly assist[], support[], or facilitate[]” prostitution can be held liable for user-posted material.

President Trump signed FOSTA/SESTA into law two days ago. Some sites, including Craigslist, preemptively changed policies in anticipation of the legislation becoming law, and in response to the FBI’s seizure of Backpage.com, a classified-ad site that was often used to advertise personal services including sex work, and which the FBI has allegedly linked to illegal sex trafficking.

Once the law goes into effect, it may not last. Many have argued that it is unconstitutional for a number of reasons, including that it effectively makes it illegal to facilitate promotion of services that are legal in some U.S. states. Many have also argued that it violates the First Amendment, and that it may make it harder for legal sex workers to maintain their personal safety and for U.S. law enforcement to identify and pursue victims of illegal sex trafficking. But unless and until it faces legal challenge in the courts, FOSTA/SESTA will probably be law.

What does this mean for fans?

FOSTA/SESTA is about promotion of personal services—prostitution—and not about fiction, art, or any other sort of fanwork.

Some sites may voluntarily decide to change their policies regarding pornography or other adult-themed material in response to the law, but those changes would not be required by the law. The only policy changes that the law requires are changes that have to do with promotion and facilitation of prostitution.

It is also possible that some particularly overzealous law enforcement members may try to stretch the law to argue that fiction, art, or other expressive works that discuss prostitution constitute “support” of prostitution. The OTW believes, however, that any such interpretation would be a gross misreading of the law, and would be a clear violation of the First Amendment of the U.S. Constitution. With that in mind, FOSTA/SESTA could make sexually explicit material more vulnerable to challenge, especially if it’s material that law enforcers do not understand—but it will not make such material illegal, and it will not make hosting such material illegal.

What does it mean for the Archive of Our Own?

The AO3 already prohibits advertising and commercial promotion. Therefore, any promotion or facilitation of prostitution that would violate FOSTA/SESTA would already be prohibited on the AO3. For that reason, in keeping with the AO3’s ongoing commitment to maximum inclusivity, any changes in the AO3’s terms of service or associated FAQ as a result of FOSTA/SESTA would be for purposes of clarification, not policy change.

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Published:
2018-03-02 13:14:33 -0500
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Fair Use / Fair Dealing Week

It’s Fair Use/Fair Dealing Week!

We here at the OTW talk a lot about how most fanworks are legal under copyright law, but we know that most people find copyright law a little bit mysterious. One reason for that is that the answer to most legal questions is “maybe.” This is particularly true for questions about the copyright doctrines of fair use and fair dealing, which are the doctrines that make (most) fanworks legal as a matter of copyright law.

So to celebrate Fair Use/Fair Dealing Week, we wanted to provide some answers to one of the questions we get most often: Why are Fanworks (Usually) Fair Use?

U.S. (and several other countries’) copyright law is limited by the doctrine of "fair use," which protects free expression by giving people the right to use copyrighted material in certain ways without getting permission or paying. The doctrine of "fair dealing" does the same thing in Canada, the UK, and a number of other countries. Courts in the U.S. have held that fair use is "not merely excused by the law, it is wholly authorized by the law."

The U.S. Copyright Act provides that certain kinds of uses of copyrighted material are fair use, and therefore are not infringing. The law provides examples of the kinds of uses that are likely to be allowed -— such as criticizing or commenting on the underlying work. The law also provides a list of factors to consider in determining whether a particular use is allowed:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Courts generally balance all four factors in deciding whether something is fair use -- no single factor determines the answer.

The Fair Use Factors

Most fanworks are fair use because most fanworks fit well within these four factors. Here’s how:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

This factor favors the kinds of noncommercial, transformative fanworks at the heart of the OTW and AO3’s mission. Although some fanworks are sold, most fanwork creators want to share their creative work without thinking about commercial gain. Commercialized fanworks may still qualify as fair use -- commerciality is only one of the factors that courts consider, and most fair use cases have been about commercial works -- but noncommercial uses are particularly favored.

Second, fanworks transform the meaning or message of the underlying work. In the case of Campbell v. Acuff-Rose, the U.S. Supreme Court explained that a use is "transformative" when it "adds something new, with a further purpose or different character, altering the [underlying work] with new expression, meaning or message." The Supreme Court explained that transformative works "lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright," and "the more transformative the new work," the more likely it is to be fair. For this reason, courts usually find that when a work is transformative, it is not infringing.

(2) the nature of the copyrighted work.

This factor doesn’t have much to do with fanworks either way. It deals with whether the original work was published rather than secret or not made available to the public, and whether the original work was factual rather than fictional. Since most fanworks are made from published works rather than unpublished or secret ones, the third factor generally weighs in favor of fair use, but the fictional nature of many fanworks' source material weighs in the other direction. Regardless, it is usually not a factor that courts tend to place heavy weight on unless the original copyrighted work was unpublished or secret.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

How this factor applies will vary widely from fanwork to fanwork, but most only take parts of the original work, and relatively small parts at that. For example, fan fiction often just uses characters, settings, or moments from a work, and recasts them into something new. (This factor, by the way, is one reason why the AO3 does not allow reproductions of whole or substantially-whole copyrighted works without the consent of the copyright owner.) Even when someone uses a "qualitatively important" part of a work, it can still be fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This factor asks whether people would buy the derivative work instead of buying the original copyrighted work or some other work the copyright owner would be likely to make or authorize. Here again, fanworks are favored. This is especially true of fanworks that criticize, comment on, or otherwise transform the meaning of the underlying work in ways the copyright holder would not do or want. Often, copyright holders want people to celebrate works "as they are," but fans want to make those works do or say something new and different. These kinds of transformations do not serve as market substitutes for the underlying work -- in fact, they often help it. Fans tend to spend a lot of money on the original work and associated merchandise, and encourage others to buy also. If anything, they help promote the original creator's work.

What About Fair Dealing?

Fair dealing laws, which govern in Canada, the UK, and several other countries, are similar but not quite the same as fair use laws. Fair dealing laws provide specific categories of works that are allowed under certain circumstances. In Canada, for example, those categories include parody and satire. They also include criticism, review, and news reporting if the maker attributes their sources. And they include non-commercial user-generated content if the maker attributes their sources and the new work does not act as a market substitute for the underlying work. So just as most fanworks are the sorts of work that fair use permits, most fanworks fall into fair dealing categories.

The OTW Is Here To Help

The OTW is committed to advocating for fans and preserving the principle that fanworks are fair use. You can find out more about our work on the OTW’s legal advocacy page.

We’re here for you! If you have questions about fair use and fanworks, feel free to contact our legal team.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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