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ftp://ftp.aimnet.com/pub/users/carroll/law/copyright/faq/part2 2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is 'fair use?'" In any analysis of copyright, it's important to remember the law's constitutional purpose: to promote science and the useful arts. "Fair use" is a doctrine that permits courts to avoid rigid application of the copyright statute when to do otherwise would stifle the very creativity that copyright law is designed to foster. The doctrine of fair use recognizes that the exclusive rights inherent in a copyright are not absolute, and that non-holders of the copyright are entitled to make use of a copyrighted work that technically would otherwise infringe upon one or more of the exclusive rights. Although fair use originated "for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research," it also applies in other areas, as some of the examples below illustrate. However, courts seem more willing to accept an assertion of fair use when the use falls into one of the above categories. Perhaps more than any other area of copyright, fair use is a highly fact-specific determination. Copyright Office document FL102 puts it this way: "The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission." The document then quotes from the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law., providing the following examples of activities that courts have held to be fair use: - Quotation of excerpts in a review or criticism for purposes of illustration or comment; - Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations; - Use in a parody of some of the content of the work parodied; - Summary of an address or article with brief quotations, in a news report; - Reproduction by a library of a portion of a work to replace part of a damaged copy; - Reproduction by a teacher or student of a small part of a work to illustrate a lesson; - Reproduction of a work in legislative or judicial proceedings or reports; - Incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported. Document FL102 is included in Copyright Office information kit 102 ("Fair Use"), which can be ordered from the Copyright Office (see section 5.1). Carol Odlum
, a free-lance editor, has provided a set of guidelines used by one publisher as rules of thumb. These certainly have no legal force, but it's instructive to note at least one publisher's interpretation of what "fair use" means in the real world. The publisher uses the following criteria for determining when permission of the copyright holder must be sought in order for the work to be used: - Prose quotations of more than 300 words from a scholarly book. (If a source is quoted several times for a total of 300 words or more, permission must be obtained.); - Prose quotations of more than 150 words from a popular, general-market book; - Prose quotations of more than 50 words from a scholarly journal; - Quotations of more than 2 lines of poetry or lyrics; - Quotations of more than 1 sentence from a popular magazine or newspaper; - Quotations of any length from letters or other personal communications, interviews, questionnaires, speeches, unpublished dissertations, and radio or television broadcasts. - Illustrations -- including drawings, graphs, diagrams, charts, maps, artwork, and photographs -- created by someone else; - Music examples of more than 4 measures; - Tables compiled by someone else. 2.9) Fair use - the legal basis of the doctrine. Section 2.8, above, describes fair use in a nutshell. This follow-on entry provides a more detailed description of the doctrine for those interested in the nuts and bolts. In the United States, these seven rights are recognized: 1) the reproductive right: the right to reproduce the work in copies; 2) the adaptative right: the right to produce derivative works based on the copyrighted work; 3) the distribution right: the right to distribute copies of the work; 4) the performance right: the right to perform the copyrighted work publicly; 5) the display right: the right to display the copyrighted work publicly; 6) the attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create; 7) the integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work. ----- There are four factors used to decide whether a particular use of a copyrighted work is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
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