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Wealth of Ideas, January 2005
It is common knowledge that copyright law gives certain
rights to the copyright holder for a certain amount
of time. However, U.S. copyright law was actually designed
to protect the public’s access to a work just as
much as the author’s monopoly on it.
A copyright can be defined as the grant of a limited
monopoly in a specific presentation of recorded knowledge;
the monopoly is limited in both duration and in scope.
The laws governing the public’s use of copyrighted
material are commonly known as “fair use”
laws, and protect the use of such material for the purposes
of education, research or the free exchange of ideas.
Fair use is determined on a case-by-case basis, and
is governed by four factors:
1. Purpose – Is the use of the work for
educational/informative purposes, or merely commercial?
2. The nature of the work that makes use of the
copyrighted material – is it creative, derivative,
or a compilation?
3. The amount of the copyrighted work used in
relation to the work as a whole – This is a major
factor in determining whether the use is a permissable
"fair use."
4. The effect on the market or potential market
– Will the reproduction of the copyrighted work
affect the copyright holder’s ability to sell it?
For instance, in the majority of instances it is a violation
of fair use to copy an entire book (see factor #3, above).
However, in the case of a book that is out of print
and unavailable, but still under copyright, photocopying
the book in its entirety for personal reference or educational
use would be a fair use because it would not affect
the author’s ability to sell the book.
Fair use questions arise commonly in academic settings,
where students and professors alike wish to copy or
reference passages of copyrighted works for educational
purposes. And since the copyright law is designed to
promote the dissemination of information, the vast majority
of educational uses of copyrighted information are considered
fair use. However, there are restrictions – for
example, a professor wishing to post copyrighted information
on a website for his or her students’ use should
restrict access to that information by requiring a password.
Fair use issues may also arise, for example, when a
reviewer wishes to critique a book, movie, or music
CD and uses an excerpt from that work in the review.
A book review that is printed in a for-profit newspaper
might be seen as a commercial use, and if the review
is negative, one might think that this would affect
the marketability of the book – thereby violating
the fair use laws in factors 1 and 4. Such use is overwhelmingly
allowed, however, because the amount of the work reproduced
in the review is usually negligible in relation to the
whole work, and bad reviews don’t necessarily translate
into a financial loss.
In light of the complexity of determining fair use,
anyone with a potential fair use issue should either
clear that use with the copyright holder or consult
an attorney who specializes in copyright law.
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