Fair Use & Public Domain: Limits of Copyright Protection

  1. If there are times when you are wondering whether an item you see or read is copyrighted, it is best to take the approach that it is unless you have good reason to believe that it is not copyrighted. This article will explore those times when exceptions can be made to this rule.

    Public Domain and Limits to Copyright Protection

    Ideas, facts, works of authorship that aren't sufficiently original are all not able to be copyrighted. Not all works of authorship are protected by copyright either. The “public domain” is a term that applies to all works of authorship, ideas and information that is publicly available but which no legal copyright protection applies. This includes works that may have been once copyrighted but whose copyright protection expired.

    The “Fair Use Exception” to Copyright Law

    There are limited instances when certain types of copyrighted material can be used without permission and without violating copyright law. The Doctrine of Fair Use allows portions of copyrighted works to be used by others, without permission from the copyright owner, for purposes such as commentaries, reviews, news reports and educational purposes.

    Although determining what is considered as “fair use” may be somewhat complicated, the general purpose of the rule is to allow people to use a small portion of another person’s work in limited situations. In most situations, the use of the work does not cause significant financial harm to the creator or owner of the copyright and hence the use is deemed to be “fair.”

    The Four Factor Fair Use Test

    Copyrighted material must have the author’s permission before it can be used. Federal copyright law of the United States, 17 U.S.C. § 106A, provides four factors that may be used to determine whether use is considered “fair” under copyright law and may not require the owner’s permission:
    • 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.
    Until a court of law determines that use of copyrighted material constitutes Fair Use, there is no safe harbor for unauthorized use. A creator uses the copyrighted material at his or her own risk. Given the large penalties for copyright infringement, it may be advisable to obtain the advice of an intellectual property lawyer in the event you have a question about an important item that you may wish to use in your own work.

    General types of Fair Use

    • Using parts of the material to make a point when criticizing or commenting on the material in a public forum
    • Summarizing a news report and adding a brief quotation from another news source
    • Illustrating or clarifying for research or scholarship, for example, quoting a short passage from another scholar in your own research paper
    • Using a limited portion of the copyrighted material for specific educational use such as a teacher using a small amount of the material for classroom use
    • Using a well known work to make a parody out of the work
    • Stating facts or statistics printed or stated elsewhere
    It is important to note that these examples are not absolute and there are several factors that must be weighed to determine whether the usage is truly “fair.” For example, many people try to make a parody of a copyrighted work to exploit financially. Such use would seem to undermine what they insist was the primary purpose that the work was used, which was for comic intent.

    Non-Commercial Use vs. Commercial Use

    One of the most important factors used to determine whether a use is considered “fair” is its commercial context. Use of copyrighted material in a way that does not bring any material financial gain is more likely to be considered fair use. For example, using a famous verse from a well known song in your own personal poem might be considered fair use. However, using the same verse in a print advertisement in order to sell a product would probably not qualify as fair use.

    Questions to Help Determine “Fair Use”

    Questions to ask in order to determine whether the use of copyrighted materials would constitute fair use:
    • Why are you using the material? Is there an added value to the general public added value or mostly a private gain?
    • Does the use compete with the author?
    • Are you quoting large portions from a book? Are you using several charts or diagrams as opposed to just one or two? If your use is more than minimal, it is more likely not to be considered fair use.
    • Is what you are using something a reasonable copyright owner might grant permission to use?

    Using Federal Government Documents is Fair Use

    Under § 105 of the Copyright Act, works that are produced by the federal government of the United States are not subject to copyright protection in the United States (they may be abroad.) This includes the text of legal cases and statutes and they can be freely copied and used without permission.
    Intellectual Property:
    Copyright

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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