When the Copyright Act of 1976 was enacted, there was extensive debate about photocopying copyrighted material for educational and scientific purposes. Congress refused to pass a specific exemption for these photocopies, leaving the fair use doctrine instead. Section 107 provides that if the traditional criteria are met, fair use may extend to the reproduction of copyrighted material for educational purposes. The difficulty lies in the application of these criteria. Recognizing this difficulty, the House Judiciary Subcommittee asked representatives of copyright owners and educational institutions to develop a set of specific guidelines, and the resulting guidelines were included in the House Report on the Copyright Act of 1976. The basic idea of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material. For more examples of comments or criticisms, see the examples of fair use cases. Fair use is decided on a case-by-case basis in all circumstances. The same act performed by other means or for any other purpose may acquire or lose the status of fair use. Even repeating an identical action at another time can make a difference due to changing social, technological, or other surrounding circumstances. [14] [30] One of the purposes of fair use is to allow citations and excerpts to be included in scientific articles without permission. Some people believe that there are accurate and quick numbers to determine how much of a work you can legally use no more than X lines of a song or no more than Y words of a lyric, but this is not the case.
Each use is different and must be considered individually. In the decisions of the Second Circuit in Salinger v. Random House[22] and in New Era Publications Int`l v. Henry Holt & Co,[23] the question of whether the copied work had already been published was considered decisive, implying the right of the original author to control or prefer the circumstances of publication of his work, not to publish at all. Judge Pierre N. However, Leval considers this implementation of certain aspects of French artist`s moral right in U.S. copyright law to be „bizarre and contradictory“ because it sometimes offers greater protection to works created for private purposes that have little to do with the public purposes of copyright than works for which copyright was originally intended. [11] This is not to argue that unpublished works, or more specifically works not intended for publication, do not deserve legal protection, but that such protection should flow from privacy laws rather than copyright laws.
The fair use legal provision was amended in response to these concerns by adding a final sentence: „The fact that a work is not published does not preclude a finding of fair use if that determination is taken taking into account all of the above factors.“ A parody is a work that ridicules another best-known work by imitating it in a comic way. The jury understands that parody, by its very nature, requires something of the original work that is parodied. Unlike other forms of fair use, a parody allows for a fairly extensive use of the original work to „evoke“ the original. Uses that interfere with the copyright owner`s ability to profit from his or her original work by serving as a substitute for demand for that work are less likely to be fair uses. In 2009, fair dealing emerged as a defense in lawsuits against file-sharing. Charles Nesson argued that file sharing is considered fair dealing in his defense of alleged Joel Tenenbaum file sharing. [31] Kiwi Camara, defending alleged file sharing Jammie Thomas, announced a similar defense. [32] However, in the Law Society case, the Court rejected the view that file sharing constitutes fair use. [33] Many educational uses will be fair, but nonprofit educational uses alone do not automatically give you permission to copy and distribute other people`s work.
You will probably need to evaluate your use each time you reproduce copyrighted material to show it in your classroom, distribute copies, include it in your writing, or publish it on canvas. Stanford University provides a summary of fair use cases in a variety of formats that can serve as a guide for applying fair dealing. For works created before 1978, the following rules apply: But even the use of a small percentage of a work can make the third factor unfavorable for the defendant, because in addition to the quantity used, the „materiality“ of the part used is also taken into account. For example, the U.S. Supreme Court held in Harper & Row v. Nation Enterprises[24] that citing a news article of less than 400 words from President Ford`s 200,000-word memoirs was sufficient to weigh the third fair dealing factor against the defendants, because the extracted portion was the „heart of the work.“ This use turned out to be unfair. [24] Non-commercial use is considered fair dealing rather than commercial use, and the law explicitly opposes non-profit educational purposes to commercial purposes. However, uses made to or by a not-for-profit educational institution may be considered commercial if they are for profit. However, courts have also recognized that non-transformative uses can be socially beneficial and that use need not be transformative to support the determination of fair dealing. The Supreme Court cited the reproduction of multiple copies for classroom distribution as the clearest example of non-transformative use that can be permitted as fair dealing in reasonable circumstances. However, the Court`s focus on whether a use is transformative makes it difficult to know how to assess uses that are for non-profit but also non-transformative educational purposes.
In addition, in some circumstances, it could be argued that textual copying of a work is „transformative“ for teaching, since the speaker (to quote the court`s definition) „adds something new, with an additional purpose or character that changes the first with a new expression, meaning or message“ during the presentation of the material. The Fair Use Index is designed to be user-friendly. For each decision, we provided a brief summary of the facts, the relevant issue(s), and the Court`s conclusion on the fairness of the impugned use. You can search for all cases, search for cases involving specific topics or categories of work, or review cases from specific courts. The index usually reflects only the decision of the highest court in a case. It does not contain the opinions of the courts themselves. However, we have provided the full legal citation so that those who want to read the actual decisions can access them through free online resources (such as Google Scholar and Justia), commercial databases (such as Westlaw and LEXIS), or the federal courts` PACER e-filing system available in www.pacer.gov. The term „fair use“ originated in the United States. [5] Although related, copyright limitations and exceptions for library teaching and archiving in the United States are found in a different section of the Act. A similar principle, fair dealing, exists in other common law countries, but in fact it is more similar to the exceptions enumerated in civil law systems. Civil courts have different limitations and exceptions to copyright. The courts have taken both a quantitative and qualitative approach to assessing the impact of the quantity and materiality of the exhibit used on the fair use analysis.
What percentage of the original work was used? There are no clear lines, but the higher the percentage, the more likely it is that this factor will weigh against fair dealing. Like any other property, a copyright can be sold or given to someone else, who then becomes the owner of the copyright. A copyright is a set of exclusive rights that can be transferred individually or all together. When signing a book contract, an author usually transfers or grants exclusive publishing rights to the publisher. The second factor considers the nature of the underlying work, particularly whether it is more creative or factual. Use of a more creative or imaginative underlying work is less likely to support a fair use claim, while use of a factual work is more likely to support a fair use claim. This factor also takes into account the publication status of the copyrighted work. If the copyrighted work is not published, the use is less likely to be fair dealing.