Copyrights
The Fair Use Doctrine
There is one rule that lets many people lawfully copy the work of others. The Fair Use Doctrine asks several questions about the use of copyrighted material to determine whether it is reasonable use. There is no simple rule about how many of the following points must be met in order for use to qualify as "Fair Use", but obviously the more the better. Much of this information is quoted from Cyberspace Law for Non-Lawyers, (Issue 7/8, and Issue 9/10)
The fair use doctrine asks several questions:
The more YES answers there are to the above questions, the more likely it is that your use is legal. The more NO answers there are, the more likely it is that your use is illegal.
- Is your use non-commercial?
- Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research?
- Is the original work mostly fact (as opposed to mostly fiction or opinion)?
- Has the original work been published (as opposed to sent out only to one or a few people)?
- Are you copying only a small part of the original work?
- Are you copying only a relatively insignificant part of the original work (as opposed to the most important part)?
- Are you adding a lot new to the work (as opposed to just quoting parts of the original)?
- Does your conduct leave unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?
The trouble is that you can't just count the answers. Sometimes even a few YESes will lead to a finding of fair use; sometimes even a few NOes will lead to a finding of no fair use. Often even the sharpest lawyers won't be able to predict the result.
U.S. FEDERAL STATUTE
(17 USC section 107)
"Notwithstanding the provisions of sections 106 and 106A [17 USC sects 106, 106A] the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
FROM THE COPYRIGHT WEBSITE
(from http://www.benedict.com/)
Further, the Supreme Court has held that the private economic interests of copyright holders (such as the publishers) are not the point of reference for adjudicating a fair use case:
"We have often recognized the monopoly privileges that Congress has authorized . . .are limited in nature and must ultimately serve the public good . . . .
'The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' . . .
"We have often recognized the monopoly privileges that Congress has authorized . . .are limited in nature and must ultimately serve the public good . . . .
'The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' . . .
SCOPE OF THE FAIR USE DOCTRINE
(from the Legal Information Institute)
Fair use provisions in copyright law designate some copying as legal or fair use. The intent is to increase public access to the work without infringing on the benefits derived from the work by author or publisher. The difficulty is in defining what is allowed and what is not.
Generally copying is not a copyright infringement unless it violates one of the following:
A. Section 107 and its Application.
The application of section 107 requires an analysis of its two paragraphs. The introductory paragraph states that fair use includes use by copying and lists six exemplars of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It also makes clear that fair use is not an infringement of copyright. "[F]air uses are affirmatively guaranteed to the public." Princeton Univ. Press v. Michigan Document Services, No. 94-1778, ___F.3d___ (6th Cir. Feb. 12, 1996). And it is worthy of note that the Eleventh Circuit recently stated in dictum that fair use is a right, not merely a defense. Bateman v. Mnemonics, Inc., ___F.3d___, 1995 WL 757786 n. 22 (11th Cir., 1995). ("[S]ince the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.")
The second paragraph lists four non-exclusive factors for determining whether a use is fair. The following is an analysis of the four statutory factors:
Generally copying is not a copyright infringement unless it violates one of the following:
- Use of copy - purpose of copy is for commercial or non- commercial educational, non-profit, study, or research use.
- Nature of copyrighted work - the more factual (and less artistic) the work the more copying is allowed.
- Amount copied - how substantial is the amount copied relative to the entire work. Generally the less copied the more fair use.
- Economics - copying should not negatively impact potential market for copyrighted work or value of copyrighted work.
A. Section 107 and its Application.
The application of section 107 requires an analysis of its two paragraphs. The introductory paragraph states that fair use includes use by copying and lists six exemplars of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It also makes clear that fair use is not an infringement of copyright. "[F]air uses are affirmatively guaranteed to the public." Princeton Univ. Press v. Michigan Document Services, No. 94-1778, ___F.3d___ (6th Cir. Feb. 12, 1996). And it is worthy of note that the Eleventh Circuit recently stated in dictum that fair use is a right, not merely a defense. Bateman v. Mnemonics, Inc., ___F.3d___, 1995 WL 757786 n. 22 (11th Cir., 1995). ("[S]ince the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.")
The second paragraph lists four non-exclusive factors for determining whether a use is fair. The following is an analysis of the four statutory factors:
- [T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The U.S. Supreme Court has said that "[t]he enquiry here may be guided by the examples given in the preamble of =A7 107 . . . ." Campbell v. Acuff-Rose, 114 S.Ct. 1164, 1170 (1994).
- [T]he nature of the copyrighted work. Factor two is a recognition of the fact that there are three types of copyrightable works: creative or predominantly original works, 17 U.S.C. =A7 102(a) and compilations and derivative works. 17 U.S.C. =9C 103. Thus the Supreme Court has recently ruled that factor two "calls for recognition that some works are closer to the core of copyright protection than others . . . ." Campbell, 114 S. Ct. at 1174. Examples are fiction (more protection) and factual works (less protection); motion pictures (more protection) and news broadcasts (less protection); creative works (more protection) and compilations (less protection). Id.
- [T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The amount that can be copied as a matter of fair use is a logical function of the first two factors, the purpose of the use and the nature of the work.
- [T]he nature of the copyrighted work. Factor two is a recognition of the fact that there are three types of copyrightable works: creative or predominantly original works, 17 U.S.C. =A7 102(a) and compilations and derivative works. 17 U.S.C. =9C 103. Thus the Supreme Court has recently ruled that factor two "calls for recognition that some works are closer to the core of copyright protection than others . . . ." Campbell, 114 S. Ct. at 1174. Examples are fiction (more protection) and factual works (less protection); motion pictures (more protection) and news broadcasts (less protection); creative works (more protection) and compilations (less protection). Id.
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