Title 17 of the United States Code lists exceptions to an original creator's copyrights that allow others to use copyrighted works for certain purposes.
Section 107 - Fair Use Exception
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the 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
Fair use analysis
To help clarify what is considered fair use, please see the fair use analysis document:
Fair use clarification via judicial decisions:
Consider all four factors
Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977).
Complying with one of the four factors in not enough to meet the fair use test (e.g., declaring one's use is educational is not sufficient). Alternatively, using a majority or a work as a whole does not mandate such use in not fair use. All four factors must be examined for every use of a copyrighted work.
The first factor, what is the purpose or character of one's use? Is it transformational?
Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002).
In this case, the plaintiff, Kelly sold images from a web site. The defendants, Arriba Soft, indexed many images on the Internet as thumbnails for a search engine. Plaintiff's images were some of the images found indexed as thumbnails on defendant's search engine. Plaintiff sued defendant for copyright infringement due to the reproduction of images as thumbnail images, and the distribution of these images on the Internet. The federal court of appeals held that transforming the original image into a thumbnail image is not copyright infringement. The court reasoned that the transformation into a thumbnail image did not serve the same purpose as the original work, because the images were not being sold as pictures but were being used to identify images on the search engine. The court stated the thumbnails were transformational in that they served a public benefit via the search engine, and they caused minimal loss to the Kelly images.
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
In this case, 2 Live Crew parodied Roy Orbison's song titled "Pretty Woman." Acuff-Rose Music, which produced the original song sued for copyright infringement. The Court held that the parody was fair use by 2 Live Crew. The Court reasoned that the parody was transformational in character.
The second factor, what is the nature of the copyrighted work?
If the work is published, factual, or nonfiction, or necessary for educational objectives, then this weighs in favor of one's fair use. However, if the work utilized is an unpublished work; a creative work such as art, music, a movie, or a novel; or is a work of fiction, then this weighs against one's argument for fair use.
The third factor, do not take the heart of a copyrighted work
Nation magazine published many excerpts from President Ford’s unpublished memoirs. Nation published these excerpts just before the Ford’s manuscript was published. The Court in this case focused on the second, third, and fourth prongs of fair use and deemed that since the copyrighted work was unpublished too much of the work was taken by the subsequent work. In other words, Nation’s magazine stole the heart of President Ford’s work. Further, Nation magazine greatly affected the potential market for his memoir, and was therefore a violation of fair use.
The fourth factor, what is the effect of the use upon the potential market for or value of the copyrighted work?
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).
In this case, book publishers sued Kinko's Graphics Corporation for copyright infringement alleging Kinko's photocopying of materials to create coursepacks negatively affected the potential publisher's market of the material being copied. The court agreed, and Basic Books was awarded an approximately two million dollar judgment.
Association of Research Libraries Guidance on Fair Use
The Association of Research Libraries offers a Code of Best Practices for Fair Use. This code addresses how the following actions may be accomplished by complying with fair use: providing digital course content to students, creating physical and digital exhibits, digitizing for preservation purposes (e.g., VHS tapes), digitizing archives and special collections, making library collections accessible to disabled patrons, managing institutional repositories, completing non-consumptive research, and collecting and preserving materials from the internet.
The Association of Research Libraries also created an infographic diagram that effectively illustrates the above-mentioned concepts.
Section 108: For Use in Library Preservation, Replacement, Personal Use, and Interlibrary Loan
Section 108 is located in Title 17 of the United States Code. To qualify for this section, libraries must meet certain requirements listed below. If a library meets these statutory requirements, this section conveys under what circumstances libraries may preserve and replace copyrighted materials, allow personal use of copyrighted items, and lend and receive copyrighted materials via interlibrary loan.
Requirements for a library under section 108:
- The collections of the library must be open to the public, or are available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field;
- any copies made by the library are conducted without any purpose of direct or indirect commercial advantage;
- any copies made must contain a notice of copyright;
- and the library should produce no more than one copy or phonorecord of a work (in other words, no systematic reproduction)
If these requirements are met, via section 108, libraries may then partake in the following acts:
Section 108 Preservation and Replacement:
Section 108 allows libraries to copy copyrighted items for preservation and replacement under specific statutory guidelines. Section 108 distinguishes between preserving published and unpublished items.
Section 108(c) allows for the reproduction of published works if:
- after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price;
- the current work is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete (note that: For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace);
- and any copy made of the work in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
Section 108(b) allows for the reproduction of unpublished works if:
- The work is currently in the collections of the library;
- such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives;
- and the copies are made solely for purposes of preservation and security or for deposit for research use in another library or archives.
Section 108 only allows for libraries to make 3 copies of an item for preservation or replacement, regardless of whether the item is published or unpublished.
Section 108 grants libraries permission to copy items for personal use:
Section 108(d) allows for the copying of one article or a small part of any other copyrighted work if:
- that copy becomes the property of the user;
- the library has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research;
- and the library displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights.
Section 108(e) allows for the copying of an entire work, or to a substantial part of it, if:
- the library has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price;
- the copy becomes the property of the user;
- the library has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
- the library displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements of the Register of Copyrights.
Without a legislative definition of what is “damaged, deteriorating, or obsolete,” it is often difficult to determine when an item meets such legislative standards, as put forth by section 108. For guidance on these issues, please see the Video At Risk: Strategies for Preserving Commercial Video Collections in Libraries published by the New York University Libraries.
Section 110(1) - Use of copyrighted materials in a face-to-face class
Section 110(1) allows for a broad array of use of various copyrighted materials in a classroom or similar place devoted to instruction. This exception allows for the showing of a film, playing music, performing a play, or projecting images, and other types of performances and displays of copyrighted works in classroom. The pertinent portion of the statute reads as follows:
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
- performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.
Section 110(2) - Use of copyrighted materials via distance learning
This section is better know as the TEACH Act, and allows for the performance of a nondramatic literary or musical work or "reasonable and limited portions" of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session. The TEACH Act is a very complex act with many statutory prerequisites. For more information on this Act please see: The TEACH Act.
Section 109(a) - The First Sale Doctrine
Section 109(a) allows the lawful owner of a copy or phonorecord to sell or otherwise dispose of that copy or phonorecord. This section permits libraries to loan, sell, donate, or otherwise transfer any lawfully owned copy or phonorecord of a work. This section and the right for libraries to do what they please with lawfully owned works was recently challenged in the Kirtsaeng v. John Wiley & Sons, Inc.case. However, the United States Supreme Court held that section 109(a) does permit owners (libraries) of lawfully obtained copies or phonorecords of works to sell, gift, loan, or otherwise transmit them.
The general guidelines for interlibrary loan (ILL) were established by the United State's Congress's National Commission on New Technological Uses of Copyrighted Works, better know as the CONTU Guidelines. These guidelines govern a library on the receiving end of an ILL. They generally convey a receiving library may receive a maximum of five copies of articles from the most recent five years of a journal title, during one calendar year. A library sending an ILL should follow the sections 108(d) and (e) guidelines mentioned above.
The University of North Texas Library policies that affect copyright issues
Do the UNT Libraries have a general policy regarding interlibrary loan?
Yes please see the UNT Libraries Interlibrary Loan Policy.
Do the UNT Libraries have a general policy regarding copying and printing related to copyright?
Yes, please see the UNT Libraries Copying and Printing policy.
Do the UNT Libraries have a general policy related to placing print and electronic items on reserve?
Yes, please see the UNT Libraries Reserve Policy.
Does UNT have a policy regarding "works-for-hire?"
Yes, please see UNT's Intellectual Property Policy 16.13.1.
Does UNT have a general copyright policy?
Yes, please see UNT's Copyright Compliance Policy 16.13.3