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Copyright Basics -
Fair Use |
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Coming Out |
Although the Fair Use provision is in the Coypright Act, prior to the
1990s, it was seldom invoked outside of academic circles. Until the 2 Live
Crew case. Fair Use seemed only to concern itself with making copies for the
classroom and using portions of works in academics treateses. The Fair Use
provision and the four factors to be considered in a fair use analysis were
dramatically fleshed out in the 2 Live Crew case. Here, we look at the fair
use provision and the four factors to be used in making a determination of
fair use.
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Fair Use Provision of the Copyright Act - The
Statutory Decree |
§107. Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 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.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors. |
Factor 1 -
Purpose and Character of Use |
This first factor looks at the new work takes into account the
following three sub-factors.
- Commercial nature or non-profit educational purposes.
- Preamble Purposes
- Criticism
- Comment
- News reporting
- Teaching
- Scholarship
- Research
- Degree of Transformation
The first sub-factor (1) simply looks at the new work and
determines whether it was created primarily as a for profit venture
or was created for a non-profit educational purpose. While not at
all determinative, this test indicates that preference will be
granted to works that were created for non-profit educational
purposes (like this Web page!).
The second sub-factor (2) looks to see if the new work is for one of
the purposes that are mentioned in the preamble of the fair use
provision. It should be noted that this list is not restrictive.
However, the burden of showing fair use is somewhat easier if the
work is for one of these purposes.
The third sub-factor (3) looks at the degree of transformation
accomplished by the new work. In other words, this sub-factor seeks
to determine whether the new work merely supplants the original, or
whether it adds something new, with a further purpose or different
character, thereby altering the first with new expression, meaning
or message.
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Factor 2 -
Nature of Copyrighted Work |
This second factor acknowledges that fact that some works are
simply more deserving of copyright protection than others.
Consequently, this portion of the test looks at the original work
and attempts to determine where that work is in the spectrum of
worthiness of copyright protection.
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Factor 3 - Relative Amount |
The third factor looks at the amount and substantiality of the
copying in relation to the work as a whole. However, the critical
determination is whether the quality and value of the materials used
are reasonable in relation to the purpose of copying. This is not a
pure ratio test in that using a whole work may be fair use in some
circumstances, whereas using a tiny fraction of a work not qualify
for fair use in other circumstances.
Therefore, the quantity, as well as the quality and importance, of
the copied material must be considered. Some Justices have looked to
see that "no more was taken than was necessary" to
achieve the purpose for which the materials were copied. |
Factor 4 - Effect upon Potential Market
Source
17 U.S.C. § 107 (1988 ed. and Supp. IV).
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The fourth factor considers the extent of harm to the market or
potential market of the original work caused by the infringement.
This test takes into account harm to the original, as well as harm
to derivative works. |
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