Escolar Documentos
Profissional Documentos
Cultura Documentos
By Richard Warner
Tutorial
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What Is Fair Use?
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The Four Fair Use Factors
Section 107 identifies four factors to be considered in
determining whether or not a use is fair:
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The Purpose and Character of the Use
The first factor is: The purpose and character of the use,
including whether such use is of commercial nature or is for
nonprofit educational purposes.
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The Professors Sudden Idea
A professor is sitting in his office working on the computer
before class. She notices that a new article in a law review
publication (copyright held by the publisher) and thinks, This
would be great to discuss in class. She copies the relevant
parts of the article and gives each student a copy.
(a) True
(b) False
Correct!
(a): True
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Why Does An Educational Use Matter?
Why does and educational use count in favor of finding a fair use?
(a) does not promote the Progress of Science and useful Arts.
(b) promotes the Progress of Science and useful Arts.
Correct!
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Transformative Use
Transformative uses are another type of use that counts in favor
finding fair use. Consider Thomas Forsythes series of 78
photographs entitled Food Chain Barbie. The photos depict
Barbie in various, often sexually suggestive, positions involving
food.
(a) True
(b) False
Correct!
(a): True
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Transformation and Progress
In transforming the image of Barbie into a parody, he created
something new and therebyso the courts assumepromoted
progress in the arts.
The court addressed this issue when Mattel, the company that
owns the copyright to Barbie, sued Forsythe and his company
Walking Mountain Productions. In Mattel v. Walking Mountain
Productions, 353 F.3d 792 (C. A. 9th Circuit 2003) the court noted
that [t]he purpose and character of use factor in the fair use
inquiry asks to what extent the new work is transformative and
does not simply supplant the original work. The court noted that
the work must add something new, with a further purpose or
different character, altering the first with new expression,
meaning, or message. The court found that the photographs of
Barbie as a parody fulfilled this condition.
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Commercial Uses
Educational and transformative uses count in favor of finding fair
use. What type of use counts against finding fair use?
It counts against finding a fair use if the use is commercial. The
activities involved in selling goods or services for profit are the
central examples of a commercial activity.
Princeton University Press v. Michigan Document Services, 99
F.3d 1381 (6th Cir. 1996), is a good example. Michigan Document
Services copied documents for its customers in exchange for a
fee. Some professors from the University of Michigan provided
Michigan Document Services with copies of articles from various
publications. Michigan Document Services reproduced the
articles, bound them, and sold them to students. The articles
were copyrighted but Michigan Document Services did not obtain
permission to copy and distribute the articles from the copyright
holders.
The court held the use by Michigan Document Services was a
commercial use.
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A Commercial Use
Copying articles to sell them for profit in coursepacks is clearly
a commercial use. As the court notes,
The question that matters for this tutorial is not whether the
use is commercial but why it matters to a finding of fair use
whether it is or not.
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Royalties
The articles copied were copyrighted and available in published
anthologies, journals, magazines, and newspapers. Michigan
Document Services did not contact the authors. They copied and
distributed the articles without permission. If Michigan Document
Services had contacted the copyright owners, those owners
would have charged a royalty for the use of the articles.
(a) Yes
(b) No
Correct!
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The Goal of Copyright and Two Assumptions
(b) No
Correct!
(a): Compensating the copyright owner for the use of the
copyrighted work helps ensure that authors have an adequate
incentive to create works.
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Why Commercial Use Matters
This is why a commercial use matters: sharing the profits with
the copyright owner helps ensure that authors will create enough
works to adequately promote progress in the sciences and arts.
But there is still a question left over. To see what it is, consider
that the coursepacks ensured that all the relevant articles could
be inexpensively provided to students in one volume.
So,
(a) The coursepacks did not promote progress in the sciences
and arts.
(b) The coursepacks did promote progress in the sciences and
arts.
Correct!
(b): The coursepacks ensured that the relevant articles were
inexpensively and easily available. They thereby promoted
education and hence progress in the sciences and arts.
How should the courts resolve this conflict? To the extent the
courts consider this question, they do so primarily in the fourth
fair use factor (impact on the potential market). The first factor
is merely concerned with whether the use is commercial or not.
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Summary of the First Factor
The first factor is: The purpose and character of the use,
including whether such use is of commercial nature or is for
nonprofit educational purposes.
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The Second Factor: The Nature of the Copyrighted Work
The nature of the copyrighted work is the second fair use factor.
What is meant by the nature of the copyrighted work? An
example is helpful.
Suppose Sarah owns the copyright to an unpublished poem she
has written. Without Sarahs permission, Sam quotes the entire
poem on his blog. What matters to the court in assessing the
nature of the copyrighted work in this case? The court will
consider two things: (1) the fact that it was unpublished, and (2)
the fact that it is a creative work.
To why it matters whether the poem was published, consider the
following.
When Sam publishes Sarahs poem before she has, he deprives
her of the opportunity to be the first to publish it where, when,
and on what terms she wants.
(a) True
(b) False
Correct!
(a): The next screen begins the explanation of why it matters
that Sarah have the opportunity to publish first.
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Why Unpublished Matters
Suppose there are publishers who would like to copy and
distribute Sarahs poem. Sarah is willing to grant them
permission to do so in exchange for money or some other
benefit.
The publishers are most likely to give Sarah the money (or
other benefit) she wants if
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Creative Versus Factual: Creative
The court will also consider the fact that Sarahs poem is a
creative work.
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Creative Versus Factual: Factual
It counts in favor of finding fair use if the work used reports
facts (historical research or a news story, example).
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Summary of the Second Factor
The second factor is: The nature of the copyrighted work.
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The Third Factor
The third factor is the amount and substantiality of the portion
used in relation to the copyrighted work as a whole.
The more of the work one uses, the more that counts against
a finding of fair use.
The courts do not just look at the quantity used, but the
importance of what one uses. Using the parts of the work
that particularly contribute to its value counts against a
finding of fair use.
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The Fourth Factor
The fourth factor is the effect of the use upon the potential
market for, or value of, the copyrighted work.
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The Effect of Selling the Course Packs
Michigan Document Services created coursepacks for students
by copying articles supplied by professors. The articles copied
were copyrighted and available in published volumes.
Michigan Document Services provided the articles in much
more cheaply in coursepacks. It only charged the cost of
copying for the course packs.
Does this affect the potential market for, or value of, the
copyrighted work?
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A Supreme Court Test for Market Harm
According to the Supreme Court, to negate fair use one need
only show that if the challenged use should become
widespread, it would adversely affect the potential market for
the copyrighted work. Harper & Row Publishers v. Nation
Enters., 471 U.S. 539, 568.
(a) True
(b) False
Correct!
(a): Students would buy the cheaper coursepacks assigned
by the professors instead of the volumes.
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Adverse Effect
By leading to fewer student purchases the widespread use of
coursepacks would adversely affect that potential market for
the copyrighted works.
(a) True
(b) False
Correct!
(a): True
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Compare the Barbie Parody
Recall Mattel v. Walking Mountain Productions, the case
concerning the photographs of Barbie.
(a) True
(b) False
Incorrect.
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Summary of the Fourth Factor
The fourth factor is the effect of the use upon the potential
market for, or value of, the copyrighted work.
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Correct!
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You have completed this tutorial.
Incorrect.
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Incorrect.
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Incorrect.
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Incorrect.
The court addressed this issue when Mattel, the company that
owns the copyright to Barbie, sued Forsythe and his company
Walking Mountain Productions. In Mattel v. Walking Mountain
Productions, 353 F.3d 792 (C. A. 9th Circuit 2003) the court
noted that [t]he purpose and character of use factor in the
fair use inquiry asks to what extent the new work is
transformative and does not simply supplant the original work.
The court noted that the work must add something new, with
a further purpose or different character, altering the first with
new expression, meaning, or message. The court found that
the photographs of Barbie as a parody fulfilled this condition.
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Incorrect.
The court addressed this issue when Mattel, the company that
owns the copyright to Barbie, sued Forsythe and his company
Walking Mountain Productions. In Mattel v. Walking Mountain
Productions, 353 F.3d 792 (C. A. 9th Circuit 2003) the court
noted that [t]he purpose and character of use factor in the
fair use inquiry asks to what extent the new work is
transformative and does not simply supplant the original work.
The court noted that the work must add something new, with
a further purpose or different character, altering the first with
new expression, meaning, or message. The court found that
the photographs of Barbie as a parody fulfilled this condition.
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Incorrect.
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Incorrect.
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Incorrect.
How should the courts resolve this conflict? To the extent the
courts consider this question, they do so primarily in the fourth fair
use factor (impact on the potential market). The first factor is
merely concerned with whether the use is commercial or not.
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Incorrect.
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Incorrect.
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Incorrect.
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Incorrect.
The photographs are not a substitute for Barbie dolls in the way the
purchasing coursepacks is a substitute for purchasing the copyrighted
works in their published form. In this way, the Barbie photographs
have no effect on the market for Barbie dolls. The photographs might
have an effect if they make people dislike Barbie dolls, but that is not
the kind of effect that concerns the court.
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