Tuesday, July 27, 2010

Fair Use? Part 1

There’s been a lot of buzz regarding the concept of Fair Use as it relates to the US Copyright laws.  Some of this is because of recent news introducing Righthaven and its tactics. From what I have read, Righthaven has made it its business to sue bloggers, websites, etc… for reposting newspaper articles without the permission of the copyright holders.

I have read several postings and articles regarding this news story, some of which are accurate, and others which miss the point. So, I wanted to address this a bit, with citations, to allow others to follow-up on my research.

First, in basic terms, copyright law defines the set of rights that belong exclusively to the creator of the work (or, in some cases, the person who hired the creator).  17 U.S.C. § 201.  The copyright exists as soon as the work is fixed in any "tangible medium."  17 U.S.C. § 102.  That's all that is needed to obtain copyright protection.  It is not necessary to actually have a copyright notice on the work itself.

These rights can be summarized as follows:

1.  The right to copy the work
2.  The right to prepare other related works based on the original work
3.  The right to distribute copies of the work to the public
4.  The right to display or perform the work publicly

Remember that these are exclusive rights.  They belong only to the copyright holder.  17 U.S.C. § 106.  Note that, like many property rights, this right can be sold, transferred, or licensed.  This allows others to enjoy one or more of those rights with the owner's permission.

The problem we're talking about here typically arises when a blogger or website contributor copies the text of a news article on his or her website or on a forum posting without permission from the copyright owner.  If you recall from the list above, we have someone who has copied someone else's work and displayed it for the public without the permission of the copyright holder.  That, in its very basic sense, is copyright infringement.  17 U.S.C. § 501.  It does not matter that the creator gets credit.  The work was still copied and displayed without permission.

Now that we have covered the copyright basics, tomorrow, I'll talk about Fair Use and other possible defenses.

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