Copyright: What are the Boundaries of Fair Use?

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The U.S. Constitution guarantees the right of authors to make money off their intellectual property. In Article 1, Section 8, Clause 8, it says that the Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The First Congress

The first Congress came up with a law pretty quickly when it convened. While other issues remained on the back burner, they enacted the first Copyright law in 1790. That law was reshaped over the years, primarily because people were living longer and the length of a valid copyright was extended. Changing technology also had a role in changes to copyright law; it was over time to keep up with the times. Revisions came in 1831, 1870, 1909 and 1976.

copyright helps writersToday, we are bound by the 1976 law, but it had two major changes made to it in 1998. One was the Digital Millennium Copyright Act (DMCA) which dealt with digital media, including the Internet. The other amendment was the Sonny Bono Copyright Term Extension Act. It gave large corporations, like the Walt Disney Company, the exclusive right to make money from copyrighted materials for an extended time period. Without the Bono Act, Mickey Mouse would have rightfully passed into the Public Domain and anyone could have used the image for any purpose.

What Copyright Means

What does copyright mean? It means that authors control their work and gain financially from it. Only the author has the right to make copies, thus the term, “copyright.” The author may sell or license those rights, as one might do when a publishing offer is made. The rights, however, are initially vested in the creator of the document. There are some exceptions to that, such as when a document is created by an employee for an employer. Or when a writer works under a “work-for-hire” agreement.  Consult legal counsel about such situations.

Fair Use

The question is, can you, as a writer, use copyrighted material in your own work without seeking permission from the copyright holder? The answer is, yes. But it is subject to something called the “Fair Use” provisions of the copyright law, which is part of Title 17 of the U.S. Code.  What are the boundaries of Fair Use? Here is the commentary on Section 107 of the code by the U.S. Copyright office:

“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work”

The Limits of Copyright

The Copyright Office is quick to point out that, “Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work,” so that gives authors a lot of latitude in the use of materials.

The Fair Use of copyrighted material is available to all writers. It is important that you keep close to the guidelines because the fair use provisions of the law are not a license to steal. Fair use is a defense against copyright infringement if you are taken to court, it is not an exemption from the provisions of the copyright laws.

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