Fair Use Law

Subject: Fair Use Law
From: Smokey Lynne L Bare <slbare -at- JUNO -dot- COM>
Date: Wed, 17 Dec 1997 00:59:08 -0500

....per my copy of Intellectual Property Law book, in the section
'Copyright Law: Definitions'
...so sayeth the attorney author...

"The Copyright Act of 1976, as amended in 1992, authorizes any person to
make 'fair use' of a published or unpublished copyrighted work--including
the making of unauthorized copies--in these contexts:
* in connection with criticism of or comment on the work
* in the course of news reporting
* for teaching purposes, or
* as part of scholarship or research activity.

As practical matter, fair use is primarily an affirmative defense that no
infringement occurred because the infringing activity was a fair use of
the original work.

Whether or not a particular instance of copying without permission
qualifies as a fair use is decided on a case-by-case basis, and depends
on four basic factors. These include:
* the purpose and character of the use, including whether such use is a
commercial nature or 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 case study cited is one where a teacher copies materials out of
another textbook. He distributed photocopies from a copyrighted book.
He provided a credit line as well as publisher information. This was
judged as fair use."

As I mentioned in my original message, based on my understanding the
material was for educational purposes, and checking with professional
attorneys in the field of copyright/patent litigation (from the copy of
the proposed question), THEIR general consensus was in this particular
case it was a fair use case. I shared what the legal SMEs told me. As
my law book says....it is based on a case-by-case "purpose and character"
of each event. One should not generalize all cases as the 1992 amendment
broadened the scope of these factors to encompass similar issues.

On the previous page of this textbook, it also states ".....No action may
be filed without first registering the copyright. (August 1995) If a
copyright owner needs the registration to pursue an infringement action
in federal court, an 'Expedited' registration must be obtained at the
cost of an additional $228."

Factual works are also public domain according to the next paragraph.
"Factual works are those that legitimately may be classified as
nonfiction. Histories, instruction manuals, trade catalogs, travel
guides, and biographies are all examples of factual works. Under
copyright law, factual works receive less protection than works of
fiction because the underlying facts are legally considered to be in the
'public domain'. Therefore, factual works do not contain as much
protectable material as fictional works."
The above material is from a law school supplemental textbook written by
an attorney. I have done work for the Center of Law-Related Education
for numerous years, and took the liberty of checking with their faculty
(practicing attorneys and judges). As a TC, I will not make the call as
others have, I will only provide was has been told to me by past judges,
litigators in that field, and from texts on the subject.

Bottom line...I believe it is a case by case scenario. As told to me by
a past judge, precedence is set in each state first. I didn't write the
laws folks, just documented various aspects of them.

http://www.documentation.com/, or http://www.dejanews.com/

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