Copyright Principles in Action

I. Preview of the Issues of Concern

B. The use (fair and otherwise) of someone else’s copyrighted work

1. Scenarios of likely use by academics

Situations in which faculty might wish to use the copyrighted work of others, include assembling a packet of photocopied readings (articles, book chapters, monographs) for students in their courses, handouts for class use, placing materials on library reserve (hard copy or electronic), course web pages, distance education (images and videos), multi-media learning materials (typically CDs), taped telecasts or broadcasts for replay in class or for review, sheet music, recorded music, digitally photographing or scanning images for reference, software for number-crunching or database searching or wordprocessing or desktop publishing, and even audio or video recording of students’ classroom presentations or performances. While many of these uses may involve "fair use" of such works, many may not and can only be used with permission (sometimes denied, sometimes granted gratis, and sometimes granted only for a permission fee). Scholarly collaborations or informal joint ventures or contractual co-development projects could also involve the use of the other party’s and/or third parties’ copyrighted material. Moreover, material found on the Internet is not necessarily in the public domain, especially if the webmaster of the site where it was found did not obtain copyrights, licenses, or permissions from the true copyright owner (which is frequently the case).

2. Licensed or Permitted Use

As suggested above, a copyright holder may transfer (see Copyright Act, secs. 201 and 204) the copyright (or portions of those rights) by assignment or, in the case of a deceased rights-holder by will or intestate succession. The partial transfers can be share interests in the whole copyright, or one (or a subset) of the several rights of the copyright owner. Particular uses or limited geographic areas or use or specific markets or a designated duration of use may be allowed as non-infringing by means of a license from the copyright holder. The license will typically be supported either by an up-front fee or by a running royalty or by both. The license may be exclusive or non-exclusive. Less formal uses (and commonly academic uses of excerpts in educational materials) may be handled by written permissions which may or may not involve the payment of a permission fee. However fair use (discussed next) does not require either a license or permission and is nevertheless non-infringing.

3. Fair Use Preview

The "fair use" defense arises out of Congress’ recognition that there is much social good to be derived from allowing some uses of copyrighted materials free of royalty or the consequences of infringement. Therefore in the Copyright Act, sec. 107 and in a few other sections Congress enacted limitations on the author’s (copyright-holder’s) exclusive rights for purposes of criticism, comment, news reporting, teaching, scholarship, and research subject to a weighing of four statutory factors. These factors are, most simply put: purpose of the use of the copy; nature of the copyrighted work; amount copied; and impact on the copyright owner’s market. However, Congress left to the federal courts the balancing of those factors on a case-by-case basis. The statute does not make any one factor (or even a majority of them) necessarily conclusive; nor does it suggest any weighting among the factors. It only requires that the court consider each of them. This level of abstraction is frustrating to those who must make a priori decisions as to whether a proposed use is "fair" or not, but it offers context-specific flexibility and good-faith balancing which, overall, are probably more advantageous than any inflexible, formulaic approach. This "fair use" concept is somewhat complex and requires coverage in more detail which is offered in Part III B. 1 below.

4. Possession and Transfer of the Work Itself

One should not be confused over the exclusive rights of the copyright-holder (explained in some detail in Part III below) with the rights of the owner of the work itself. Obviously, possession is one such right the owner has. Similarly, under the "first sale" doctrine, the owner can sell or loan or give away the work itself (e.g. a copyrighted book or a CD or a painting). However, one must distinguish between the status of "owner" and that of "licensee". Licensing is typically the way one becomes entitled to use software and, understandably, the licensee’s rights are controlled by the license. The legal efficacy of "shrink-wrap" or "click here" licenses is somewhat more complicated, but, in general, if the would-be licensee has a reasonable opportunity to read and understand what the license terms are before finalizing the transaction, he/she/it is bound even in those situations. However, except for the statutory limitations (included among which is fair use), an owner of the work may not copy it as this is among the exclusive bundle of rights of the copyright-holder.

5. Summary and where to get help