WTMHouston & All, [This is a simple and clear legal explanation of the doctrine of "fair
use" as a defense to charges of copyright infringement, excerpted from
Judge Whyte's decision, Sept. 22, 1995, in RTC & Bridge v. Erlich, Netcom
& Klemesrud.]
Fair Use Defense
"Infringement' consists of violating the author's exclusive
rights. 17 U.S.C. section 501. Although the author has the
exclusive rights to reproduce, distribute, and display a
copyrighted work under section 106, these rights are limited by
the defense [12] of "fair use""
Notwithstanding the provisions of section 106A, the *fair
use of a copyrighted work,* including such use by
reproduction in copies . . . or by any other means specified
in 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.
17 U.S.C. section 107 (emphasis added). The defense "permits and
requires courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity
which that law is designed to foster." Campbell v. Acuff-Rose
Music, Inc., 114 S.Ct. 1164, 1170 (1994) (citation omitted).
Congress has set out four nonexclusive factors to be considered
in determining the availability of the fair use defense:
(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.
17 U.S.C. section 107. The fair use doctrine calls for a
case-by-case analysis. Campbell, 114 S.Ct. at 1170. All of the
factors "are to be explored, and the results weighed together, in
light of the purposes of copyright." Id. at 1170-71.
SOURCE: eff.org |
