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Copyrights and fair use, title 17 section 107 etc.

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Bill

Posted: Jul 5 2005, 12:18 AM

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Fair use for research and education:

Its common practice among students, teachers, researchers, etc. to xerox journal articles and pages from books for personal use and in some cases distribute copies to others. Its important to note that the US Patent and Trademark Office does NOT copyright patents. US patents are guaranteed by US federal law to be available to the public for viewing. Some patents (a small fraction) may "claim" to have copyrighted material (ie. copyrighted by inventor, assignee, etc.) in them, but can be copied for patent use (ie. patent prosecution) or fair use.

A typical copyright statement in a patent is as follows:

QUOTE

A portion of the disclosure of this patent document contains material which is subject to copyright protection. The copyright owner has no objection to the facsimile reproduction by anyone of the patent document or the patent disclosure, as it appears in the Patent and Trademark Office patent file or records, but otherwise reserves all copyright rights whatsoever.

http://patft.uspto.gov/netacgi/nph-Parser?...RS=PN/6,912,475

Scanning and uploading journal articles and pages from technical books is also commonly done by people and even library employees. After reading the terms of use on various free message board hosts I decided to look into the policy of fair use of copyrighted works. Two books I have been reading are:

Business Guide to Copyright Law What You Don't Know Can Co$t You! (Paperback)
by Woody Young
http://www.amazon.com/exec/obidos/tg/detai...=glance&s=books

and

The Copyright Handbook: How To Protect & Use Written Works (Copyright Handbook) (Paperback)
by Stephen Fishman
http://www.amazon.com/exec/obidos/tg/detai...=glance&s=books

The editions I have are a couple years old and new laws may have been passed which I don't know about. Anyway, Fair use in US law seems to start with title 17 US Code section 107:

QUOTE

107. Limitations on exclusive rights: Fair use

Release date: 2004-04-30

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—
(1) the purpose and character of the use, including whether such use is of a 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; and
(4) 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 is made upon consideration of all the above factors.

http://www4.law.cornell.edu/uscode/html/us...07----000-.html

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Libraries and archives seem to have a lot of freedom to copy materials. See http://www4.law.cornell.edu/uscode/html/us...08----000-.html

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Bill

Posted: Jul 5 2005, 12:45 AM

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Fair use of out of print materials:

QUOTE

The Senate Report confirms that Congress intended the unpublished nature of the work to figure prominently in fair use analysis. In discussing fair use of photocopied materials in the classroom the Committee Report states:

"A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is `out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it . . . . The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances, the copyright owner's `right of first publication' would outweigh any needs of reproduction for classroom purposes." Senate Report, at 64. (HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985) )

http://caselaw.lp.findlaw.com/cgi-bin/getc...ol=471&page=548

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Bill

Posted: Jul 5 2005, 01:20 AM

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good faith fair use defense [17 USC 504©(2)]:

QUOTE

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504©(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if you followed this Policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This makes someone who ignores policies a handsome target for a lawsuit.

http://www.utsystem.edu/ogc/intellectualpr...ty/copypol2.htm

QUOTE

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or
(ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

[17 USC 504©(2)] http://straylight.law.cornell.edu/uscode/h...04----000-.html

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Bill

Posted: Jul 5 2005, 01:25 AM

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quotes:

QUOTE

To quote is not necessarily stealing. Quotation can be vital to the fulfillment of the public enriching goals of copyright law.

--Judge Pierre N. Leval

from The Copyright Handbook: How To Protect & Use Written Works (Copyright Handbook) (Paperback)
by Stephen Fishman
Chapter 11 page 2, 1992

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Bill	Posted: Jul 10 2005, 07:04 PM
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