Intellectual property is a right recognized not only by the United States
government but also through international law. The ability to maintain
the exclusive rights to use and control the use of intellectual property
is both an important source of pride for authors and artists, as well
as a potential source of income through monetization. However, forbidding
anyone from using any portion of a piece of intellectual property for
any reason at all is not conducive to a smoothly-functioning society,
and the Constitution preserves ten limitations on the Copyright Act which
are designed to maintain full First Amendment rights. Let’s take
a closer look at “fair use” and learn why it could be important
when you plan on copying a document.
The Fair Use Statute
Whenever a piece of intellectual property is produced, both the producer
and society as a whole have an interest in the ability to use that particular
piece of property for various reasons. While the property owner doesn’t
want to see their work stolen or appropriated without adequate recompense,
society as a whole does not want to have to pay to use the piece for their
own means that would otherwise be protected by the First Amendment. Thus,
over years of litigation and arguments from both sides, the courts developed
the principal of “Fair Use,” which is now inscribed in law
via the Copyright Act.
Fair Use essentially dictates that there are a limited number of circumstances
in which an individual can legally copy a portion of an intellectual work
and use it for their own purposes. There are four fundamentally protected
instances which are protected by fair use:
criticism, news reporting, teaching, and
However, there’s more to the doctrine than just those four purposes.
In determining whether a particular use is “fair,” the court
will take a few other things into account. First, is the use of a particular
piece of intellectual property intended to be non-profit and educational,
or does the user intend to use the intellectual property in any part in
an attempt to make a profit? If money will be made off the property, odds
are it will not be protected by fair use. The courts will also look at
how much of the work is being appropriated through the use. For example
quoting a newspaper article while writing for a scholarly journal is generally
protected as fair use, provided the journal author cites the original
newspaper article. However, a teacher who wishes to use a particular textbook
for their class may not simply copy the entire textbook and distribute
it to their students since they are appropriating a large portion of the work.
This latter example also shows another factor taken into account by the
courts: the effect the appropriated use can have on the value or market
for the original work. By copying the information out of a textbook and
distributing it to their class, the teacher has substantially weakened
the market for purchasing copies of the textbook, potentially costing
the author the value of a certain number of copies of that book sold.
Why Is This Important When Copying?
If you plan on making copies of a particular piece of intellectual property
and distributing it, it’s important that you know you are doing
so under one of these three circumstances:
- You own the rights to a particular piece of intellectual property, either
by creating the property yourself or by purchasing them from the copyright holder
- You have the express permission of the copyright holder to make the copy
and distribute it for your purposes
- You are making the copy under the terms protected by fair use
In the business world, copies must be made all the time for a variety of
reasons, but making copies of something that someone or a company does
not have the rights to could result in potentially serious consequences,
including fines and reparations to the copyright owner. Be extremely careful
when making copies that you plan on distributing; if you don’t own
the rights to a particular piece of property, make sure it’s covered
under fair use.
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Find out how we can help your business or legal firm today by calling (929) 244-4322.