Copyright & Fair Use

Introduction

Historically, copyright comes from English common law. England enacted the first copyright law in 1710, titled the Statute of Anne. This gave the author the sole right of printing and copying of their work. The United States based their copyright law on the English version. George Washington signed the law in 1789 and the government revised it several times over the years. The United States follows the major revision in 1976 with minor modifications today (Simpson, 12). The intent of the law is not to restrict use of creative works or even to protect the authors and the artists. Reed points out that “the Constitution (Article I, Section 8, Clause 8), specifies the purpose of copyright protection: 'To promote the progress of science and useful arts'” (p. 1).

Background

The fair use provision found in the Copyright Law of the United States (2003), section 107 - 118, limits the exclusive rights of the owner of the copyright to allow others to reproduce the work. The purpose was to benefit the public, without hurting the welfare of the owner. The justification for this was making copyrighted material available to scholars, researchers and teachers, which would benefit society as a whole.

The four factors of fair use are:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work;

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.

According to Reed (1988), “legislative history indicated that these four factors were meant to be illustrative, but they seem to have become determinative” (p. 4). Knowledge and understanding about the four factors is not enough.

Discussion

Copyright

Whereas the patent system focuses on protecting ideas, copyright law aims to protect the expression of ideas. In contrast to the formalities of the patent application process, any original work of authorship that has been fixed in some tangible medium is potentially eligible for copyright protection immediately after its fixation. For example, copyright protection may apply at the moment an original poem is written on paper or an original song is captured on a recording device. In addition to the relative ease with which copyright protection may apply, the duration of copyright protection is considerably longer than exists for patents, currently extending to the life of the author plus 70 years before lapsing into the public domain. As with patents, copyrights represent a form of property and may be licensed and sold to others.

The foundation of the copyright law system rests on many of the same principles motivating the patent law system. Property rights in literary and artistic works are argued to be the best way to provide authors and artists the economic incentives to create new works without fear that others will copy their works at little or no cost. However, the distinction between patents and copyrights ...