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FAIR USE OR INFRINGEMENT?

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When a copyright is obtained, the owner has the exclusive right to use and distribute all copies of the material. Any other use of the copyrighted material may be considered copyright infringement. However, there are instances where the use of copyrighted materials can be justified due to limitations on the exclusive rights of a copyright owner, known as fair use. It is often difficult to determine whether or not the use of a particular piece of work is considered “fair use”.

Under section 107 of the Copyright Act, determining whether or not the use of the work is considered as fair use includes the four following factors:

(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 or value of the copyrighted work.

The Fair Use Analysis

The fair use analysis usually falls under two major categories: commentary and criticism, or parody. The use of copyright materials for these purposes does not require the permission of the copyright owner.

If one is commenting or critiquing a piece, such as in a book review, they have the right to reproduce parts of the copyrighted material in order to achieve the intended purposes. Furthermore, quoting a few lines of a book in a review, or using a paragraph from an article to teach a class would also be considered fair use. As long as the commentary or criticism enhances the original copyrighted work and benefits or educates the public, it will not be considered as an illegal infringement.

A parody is a piece of work that closely imitates another work for ridicule purposes. The fair use analysis for parodies is more complicated. A parody must closely resemble the original work in order for the audience to recall the original work, and it must do so without actually infringing on the work. If the parody creates bad faith of the copyrighted material among the public, it could be considered as infringing. A special quality of parodies is that they can be considered fair use even if they are done for profit.

How to Legally Use Copyrighted Works

Use of copyrighted material can also be problematic when there is an extensive use of the original work, especially if the original author does not receive credit. Using a copyrighted piece would be considered fair use under the circumstances in which it is used for teaching, research, scholarship, news reporting or nonprofit educational purposes. However, when the piece is used in commercial activity, and the user is profiting from the use, it is considered infringement. In all cases, credit must be given to the original author.

Typically, in order to use or distribute copyrighted work, permission must be obtained from the copyright owner. In certain cases, a compulsory license can be obtained that allows a person to use copyrighted material without the permission of the copyright owner. The license allows a person seeking to use copyrighted material the ability to do so by paying the copyright owner a set fee for the license. However, these licenses are limited and apply only under specific circumstances.

The copyright grants exclusive rights that can be exercised by the owner in any way they see fit. Copyright owners have the power to prevent distribution and publication, but fair use allows others to use the copyrighted work legally under certain situations. Understanding the limits of copyright protection and the conditions of fair use are essential to avoid possible copyright infringement.

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