Fair Use in the Copyright Context

Sections 107 through 118 of Title 17 of the United States Code dealing with copyright law impose certain limitations on the right of a copyright owner to reproduce or to authorize others to reproduce a work in copies or phonorecords. One of such limitations is the doctrine of “fair use.” Among purposes for which reproduction of a work may be considered fair are criticism, comment, news reporting, teaching, scholarship and research. Section 107 sets out four factors that should be considered in determining whether or not a particular use is fair use.

  • The purpose and character of the use, including whether such use is of 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
  • The effect of the use upon the potential market for, or value of, the copyrighted work

Fair use is commonly asserted as an affirmative defense to a claim for copyright infringement and requires balancing of factors favoring fair use against protecting an author’s exclusive rights in the copyrighted work.

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