20-24 February 2023 is Fair Use/Fair Dealing week! The purpose of this week is to highlight how the concepts of Fair Use and Fair Dealing enable creative expression, educational opportunities, and impact our daily lives in myriad ways.
It is not an infringement of copyright for a library or archive (or for any of its employees acting within the scope of their employment) to reproduce no more than one copy or phonorecord of a work...or to distribute such copy or phonorecord, if:
- the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
- the collections of the library or archives are (i) open to the public, or (ii) 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; and
- the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
The purpose of copyright law is to provide protections for intellectual property and prevent unauthorized usage. Copyright law prevents any commercial entity for using another's copyrighted work for profit without the express consent of the copyright holder. However, importantly for universities and educational institutions, an exemption known as 'Fair Use' exists. Under sections 107 and 108 of the 1976 Copyright Act (linked below), usage of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." One example brought to popular attention by COVID is remote classwork and the online accessibility of textbooks and other copyrighted publications.
Performances or displays of copyrighted material are not considered copyright infringements under the following circumstances:
- performance or display of a lawfully made and obtained 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;
- performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
- performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, without any admission charge, and with exclusive use of the proceeds for educational, religious, or charitable purposes after deducting reasonable costs for performance production.
The full list of circumstances under which performances and displays of copyrighted material are not considered copyright infringement can be found in section 110 of the Copyright Act.
While copyright cases sit within the Federal Court's primary jurisdiction, some cases are within a state court's primary jurisdiction because of their circumstances or state law. The following cases are examples:
Associated Management Services, Inc v. Ruff
The 1998 Digital Millennium Copyright Act (DMCA) was passed with the intent to update copyright law to reflect the changes wrought by the internet. The DMCA protected Internet Service Providers if their users made copyrighted material freely available and created a mechanism for copyright holders to have their copyrighted material removed from those users' distribution centers; provided legal protections against unauthorized access to copyrighted works in digital formats to copyright holders; and made it illegal to provide false copyright management information or to remove or alter information about the copyright holder.
The DMCA did not change or restrict the doctrine of 'Fair Use;' however, the DMCA is noteworthy because it expanded the potential distribution of copyrighted material and explicitly rendered illegal the provision of false copyright information.
