For Profit Vs. Non-Profit Copyright Laws & Fair Use Issues
Historically, the fair use doctrine has entitled those with a legitimate purpose to reproduce portions of copyrighted works without being subject to copyright infringement action.The fair use doctrine has been widely used by non-profit organizations especially to protect their use of of copyright protected materials for educational and other purposes. Although the law is generally more generous concerning fair use with non-profit organizations, this does not grant free license for wholesale copying. With the increased presence of the Internet, this issue has become even more prominent.
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Copyright and Fair Use
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Copyright law specifies that the originator or other rightful owner of the rights to a created work is entitled to control the use and distribution of that work. This is especially true where monetary gain or other benefit is concerned. Intellectual property enjoys a similar legal status as do tangible goods such as real estate, jewelry or other possessions. Owners of intellectual property have the right to protect their interests, just as the owners of tangible goods do. However, copyright was never designed to grant holders of intellectual property the exclusive right to exclude the use of their property by others forever. Along with laws dictating the expiration of copyright, the fair use doctrine is designed as a balance which allows the legitimate use of protected intellectual property--much like an easement allows the legitimate access by one party of private real estate which is owned by another party.
Favored Fair Uses of Copyrighted Material
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Section 107 of the United States Copyright Act states the various purposes for which the reproduction of a particular work may be considered "fair": criticism, comment, news reporting, teaching, scholarship and research. In addition, courts have consistently found that parody or satire of copyrighted material constitutes fair use.
It is also recognized that the fair use doctrine applies to "space-shifting"--making backup copies of one's own media (such as CDs), and "format-shifting"--reproducing such content into another format for personal, noncommercial use (for instance, making an MP3 copy of music from one's own CD). The same principle applies to private, non-commercial recording of TV programs.
Along with private citizens, non-profit organizations are generally given more latitude in the use of copyrighted materials than are commercial ventures. In rare instances, use of an entire copyrighted work, for instance, for educational purposes, has been found to be protected under the fair use doctrine. The law is much more stringent in regard to commercial use of copyrighted property, in the interest of preventing one for-profit venture to benefit unjustly from work done by another. -
The Four Point Test of Fair Use
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Section 107 of the United States Copyright Act (see Resources below) establishes a four-part test to be applied in questions concerning fair use of copyrighted material:
"1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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."
This four-point test is designed to balance the rights of the copyright holder to draw monetary and other benefits from her own work against the public good to be gained from distribution of the material which would otherwise not be allowed. One implication of this test is that it is much easier to prevail on a fair use defense if no monetary gain has been realized from the use of the copyrighted material, which is more likely with non-profits. Another important consideration is whether or not the use of copyrighted material has the effect of planting a misconception concerning the authorship of an intellectual property.
In general, factual work such as a newspaper article is more subject to the fair use doctrine than a work of fiction. This is because facts are more likely to be readily available to anyone who conducts a proper investigation, whereas a fictional work is the product of the author's unique imagination and creativity.
Public Domain and Orphan Works
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After a specified period, depending on the nature of the work and the date of the original copyright, all copyrighted works fall into the public domain, where they are subject to lawful reproduction by anyone. In addition, factual collections of information, such as the list of ingredients in a recipe, are not subject to copyright, although a cookbook which includes recipes is entitled to copyright protection.
A controversial piece of legislation currently under consideration concerns "orphan works," or intellectual property for which no rightful copyright owner can be located. Such legislation calls for specifications which would allow the use of such "orphan works" without attribution and without fear from subsequent copyright infringement action. While non-profits, scholars and even private citizens have repeatedly called for such legislation to free access to numerous works which presently remain largely out of legal reach, several members of the creative community have expressed deep concern that such legislation would open the door to wholesale unlawful reproduction of their work.
Misconceptions
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Contrary to popular belief, there is no hard and fast rule as to the number of words which can be reproduced from a copyrighted work under the doctrine of fair use.
Non-profits do not automatically have free license to reproduce copyrighted work without attribution or compensation. Posting a link to an article or a commentary of the article is much more legally defensible under the fair use doctrine.
Names and ideas are not subject to copyright, nor is knowledge which is generally acknowledged to be common knowledge.
Government works are considered to be in the public domain and may be freely duplicated.
However, the majority of material which appears on the Internet, including photographs, is not in the public domain and may not be lawfully reproduced or distributed without obtaining permission of the copyright owner.
Merely showing attribution for reproduced work does not provide complete cover from the law--attribution is necessary but not sufficient to establish lawful use of copyrighted material.
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