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Limitations to Copyright

Fair Use

Fair use limits the exclusive rights of the copyright holder, and is especially helpful in academic settings. Specifically, the Copyright Act of 1976 refers to uses such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

However, “fair use” is described in terms of guidelines and not with specific rules and is therefore open for interpretation. Section 107 of the Copyright Act of 1976 provides the following four principles (exposition based on Crews, K.D. Copyright Law for Librarians and Educators, Chicago: American Library Association, 2006):

    1. The purpose and character of the use
      In general, copyrighted works used for educational purposes meet this fair use standard.

 

    1. The nature of the copyrighted work
      Fair use generally applies to nonfiction works more readily than fiction and works of an artistic nature. However, such consumable items as workbooks and study guides that have been created as single-use items are exceptions and will not fall into the fair use exception.

      Out of print works offer an area of some confusion in that it would seem fair use to make copies of a work that is otherwise unavailable. Nevertheless courts have sided with copyright holders on this topic and so it is wise to seek permission even for out of print works.

 

    1. The amount and substantiality of the portion used
      Unfortunately no exact measures exist in the copyright laws for how much of a work may be reproduced, and in fact the issue is much more complicated than simply number of words of percentage of the whole.

      There have been arguments made that reproducing the “heart” of the work, no matter how long constitutes a breach of fair use.

      That said, it is generally accepted that articles and single chapters fall within the fair use guidelines. Furthermore, a clearly argued purpose from the first principle can outweigh a perceived breach in this instance.

 

  1. The effect of the use upon the potential market
    If the reproduction directly replaces a potential sale (e.g. photocopying a chapter so that students do not need to purchase the entire book), then the situation does not fall within fair use.

    The idea of potential sale, however, can be more broadly interpreted to also include a situation that would limit the copyright holder’s opportunity to collect permissions fees and such.

All four of these factors must be considered and weighed for each situation, although courts have historically put the most weight on the first and fourth factors, especially the fourth.

For a further discussion of these four factors, take a look at the University of Texas’ Using the Four Factor Fair Use Test.

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Date Limitations

    • For works published on or after January 1, 1978: Protection extends from the moment of creation until 70 years after the last surviving author’s death. For items without specific authors (for hire or anonymous works) copyright extends 95 years after publication or 120 years after creation, whichever is shorter.

 

  • For works published before January 1, 1978: Originally these works were only eligible for protection for 25 years. However subsequent legislation has allowed for renewals that may amount to a total of 95 years. These works must contain an explicit statement of copyright.

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Public Domain

Items in the public domain are not eligible for copyright protection and may be reproduced without restriction. These include:

  • Ideas and artifacts
  • Words, names, slogans (although these may fall under trademark protection)
  • United States federal government publications (unless they contain copyrighted material
  • Works dated 1922 or earlier
  • Works first published before January 1, 1978 that do not include a copyright statement

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Implied Licenses for Internet Materials

Contrary to what some believe, copyright does still apply to materials on the Internet. Just because an author posts something on a Web site does not mean that the material is automatically in the public domain.

That said, because of the nature of the Internet, there is something of an implied license for these materials. When an author makes something available on the open Internet (as opposed to proprietary Internet, those sections specifically licensed for sale and protected behind passwords such as most library databases), he or she should expect that people will read, download, print-out, forward, and use that material as the basis for other works to a certain degree. Therefore there is an implied license to conduct these sorts of activities.

As with many other areas of copyright, the boundaries for these implied licenses are not entirely clear, and the word “reasonable” tends to come up as the measuring stick for gauging infringement.

It is always good to keep in mind that in copyright cases the courts seem to look most closely at whether the use of copyrighted materials has diminished the market for those materials. Is the copyright holder losing money due to the actions taken by the user of the materials? This is especially important when talking about the type of peer-to-peer file sharing.


This document is a policy statement only and is not intended to replace the advice of legal counsel.

For more information, please contact Jessica Bell, director, Office of the Library and Instructional Design, MGH Institute of Health Professions.

 

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