Fair Use  
     

This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner.

The original intent of copyright was to advance the progress of knowledge by giving an author of a work an economic incentive to create new works by limiting protection to a relatively short time span.

The advent of computers (and associated support products) accelerating at exponential instead of linear time frames has given rise to numerous copyrighted materials which are considered obsolete and no longer available from the copyright holder. We therefore believe hosting such material constitutes 'fair use' as provided for in Section 107 of the U.S. Copyright Law.

The four fair use factors:

FACTOR 1: What is the character of the use?

  • Nonprofit
  • Educational
  • Personal
  • Criticism
  • Commentary
  • Newsreporting
  • Parody
  • Otherwise "transformative" use
  • Commercial

Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right.

FACTOR 2: What is the nature of the work to be used?

  • Fact
  • Published
  • A mixture of fact and imaginative
  • Imaginative
  • Unpublished

Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance.

FACTOR 3: How much of the work will you use?

  • Small amount
  • More than a small amount

The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.

FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?

  • After evaluation of the first three factors, the proposed use is tipping towards fair use
  • Original is out of print or otherwise unavailable
  • No ready market for permission
  • Copyright owner is unidentifiable
  • Competes with (takes away sales from) the original
  • Avoids payment for permission (royalties) in an established permissions market

 

If the first three factors indicate that the use is likely fair, courts will not permit the fourth factor to convert an otherwise fair use to an infringing one. On the other hand, if the first three factors indicate that the use is likely not fair, courts are willing to consider lost revenues under the fourth factor. This means that if a use is tipping the balance in favor of fair use after the first three factors, the fourth factor should not affect the results, even if there is a market for permissions, even if the owner would lose money because of the use.

The facts in the middle illustrate circumstances that also supports fair use, as they indicate a lack of harm to the owner's economic incentive.