Fair Use
Copyright law grants the
exclusive right to use, copy, distribute, display and perform a
copyrighted work to the owner of the copyright. The owner of the
copyright is the only entity that may grant permission for anyone
to use, copy, distribute, display and perform the work. Certain uses of
copyrighted works do not require permission from the copyright owner and
these uses are known as 'Fair Use.'
Libraries are given special
exemptions under Fair Use and your campus librarian can assist you in
determining fair uses of library holdings.
It is important to remember
that all text, software, audiovisual works, photographs, digital images
and sounds are granted copyright protection as soon as they are created
and all works created after 1978 are protected automatically. A work
does not need to bear a copyright notice to be protected. Unless you
know for a fact that the work is in the public domain, assume it is
copyrighted and you must obtain permission to use the work.
You must seek permission
from the copyright owner to use the work. For publications in books
or journals, generally the publisher is the owner of the copyrights and
can grant permission for your use. If the publisher is not the
copyright owner, they can probably direct you to the copyright owner.
Depending on the nature of the
work, permission may be required from more than one source. For example,
if you wish to use a photo from a magazine, the publisher may own the
copyright on the photo but if the subject of the photo is a well known
person, you may also need to obtain permission from the individual in
the photo and the photographer. Obtaining permission to use a popular
recording of a song may require permission from the composer, the
lyricist and the performer. Film clips may require permission from the
producer and the actors, as well as the owners of the rights in the
music if music is a part of the film clip.
When seeking permission to use
a copyrighted work, you must provide specific information on your
intended use of the work. You should describe in detail what you want to
use, how many copies you intend to make, how the work will be
distributed, and for what fee, if any. You should also state whether or
not the project is for educational or commercial use. Depending on your
intended use, the owner may or may not grant you permission and they may
or may not charge a fee to grant the permission. Fees may include a one
time charge or a percentage of your profits (royalties.) It is also
important to remember that you will only be granted permission for the
use you specify. Different or additional uses in the future will require
separate permission.
Certain uses of copyrighted
works are not considered to infringe the rights of the copyright owner
and are allowed under
copyright law as
Fair Use.
From the text of the Copyright Act of 1976, as
Amended, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright.
Fair Use
is a common defense in copyright infringement lawsuits.
It is important to understand that the law does not grant individuals
the right to determine if they are making a fair use of a copyrighted
work, rather, it provides guidelines for courts to make this decision on
a case by case basis. Fair Use analysis is not simple and the outcome
of a Fair Use defense is not predictable. It is unwise to assume
that you are not infringing a copyright unless the specific use has been
determined by case law to be non-infringing based on Fair Use, such as
video taping television broadcasts for home use or copying a portion of
a work to provided comment or criticism.
In determining whether the use
made of a work in any particular case is a fair use the factors to be
considered 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
the effect of the use
upon the potential market for or value of the copyrighted work
The
Supreme Court has established the effect on the market value of the work
to be the most important of these factors. It is important to understand
that just because you may wish to use a work for educational purposes,
it is not automatically a fair use of the work. For example, recent
litigation has found that copying a work in its entirety rather than
buying the book or journal, is not a fair use, even if it is copied for
educational purposes. In another case, it was found to be infringing to
copy and distribute copies of journal articles for many people in an
organization when only one copy of the journal was purchased.
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