While the origin of fair use lies with federal court decisions, it was also entered into legislation, specifically the Copyright Act of 1976. This legislation stated:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
- the purpose and character of the use, including whether such use is of a commercial nature or is 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding ismade upon consideration of all the above factors.
The first consideration is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. When it comes to purpose and character, courts have ruled that whether the use of the work is fair use requires that the new work be not merely derivative of the original, but transformative of it. It's important to note that while court decisions have said that a stronger case can be made for fair use that is in an educational setting, particularly a non-profit one, even that class of use does not make it a given that use of material is fair use - the other considerations are still in effect.
The second consideration is the nature of the copyrighted work. This includes whether the work is fiction or non-fiction, and takes into account the concept of “idea-expression dichotomy,” which holds that facts may not be copyrighted, only expressions of them can be. This consideration also allows for fair use of non-published material.
The third consideration is the amount and substantiality of the work copied. This consideration explains why a single textbook cannot simply be (legally) copied in its entirety for each student to use even though “teaching (including multiple copies for classroom use), scholarship, or research” is specifically listed as part of the rationale for this section of legislation. There is no simple percentage, however, that can be used to determine whether this consideration has been met. Even copying a small portion of a work may not be fair use if it is considered to be the core of the larger work. Recent court decisions have strengthened this consideration, particularly for music sampling, for which fair use essentially no longer applies.
The fourth consideration is the effect of the copy's monetary value on the original work. The more the copying might negatively affect the monetary value of the original, the weaker the claim to fair use becomes. Whether fair use may actually increase the value of the original work through popularizing it is not often discussed.
- 瀏覽次數：1201
