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Copyright and Fair Use

The Federal Copyright Law of 1976, Title 17 of the United States Code which granted exclusive rights to copyright holders was later modified by The Fair Use Statute, Section 107. This Fair Use doctrine balances the copyright holders rights with society's need for copying for news reporting, criticism, teaching, research, scholarship and parody. While the Fair Use doctrine allows limited copying of copyrighted work without obtaining permission from the copyright holder, Fair Use is not clear-cut. Congress deliberately avoided exact parameters for claiming Fair Use to allow for flexibility and instead suggested these four Fair Use guidelines to consider in determining whether a particular use of copyrighted materials is fair use and therefore not an infringement:

1. What is the purpose and character of the use?

2. What is the nature of the work to be used?

3. What is the amount, substantiality or portion used in relation to the copyrighted
work as a whole.

4. What effect would this use have on the potential market for the value of the
copyrighted work.

Purpose: While nonprofit educational purposes are favored over commercial uses, this factor alone doesn�t constitute a fair use exemption. Generally the courts favor transformative use (excerpts incorporated into a new paper or pieces of a work mixed into a multimedia presentation) over reproduction of a work but the courts have allowed multiple copies of some works even if not transformative.

Nature: This factor examines the characteristics of the work considered for copying. Generally a published work is favored over an unpublished work. Nonfiction is generally favored over fiction and print over media. The courts are split on whether a published but currently out-of-print work should receive fair use exemption. Photocopying a consumable workbook is never allowed.

Amount: is measured both quantitatively and qualitatively. The courts have not recommended specific amounts. "Quantity must be evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective". While the copying of entire works is never considered fair use, the courts have also ruled that copying even a small amount, if it is "the heart of the work may weigh against fair use."

Effect: Some courts have called this the most important factor in fair use analysis. No copying, whether of an educational or commercial nature should replace the sale of the copyrighted work. Having purchased a copy of the original work weighs in favor of fair use while the availability of a license would weigh against fair use.

These four factors must be balanced in considering fair use. Satisfying one factor is not enough to claim fair use.

Sources: The Federal Copyright Law of 1975, Title 17 of the United States Code
Section 107 of The Copyright Act of 1976
Fair Use Overview and Meaning for Higher Education by Kenneth D. Crews, Associate Professor of Law and of Library and Information Science; Director, Copyright Management Center, Indiana University-Purdue University at Indianapolis


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