WHAT DOES COPYRIGHT PROTECT?

Section 102 of Title 17 of the U.S. Code states that copyright protection extends to "original works of authorship fixed in any tangible medium of expression" that can be communicated "directly or with the aid of a machine or device." This means that U.S. Copyright Law covers all forms of expression as long as they are “fixed” [put down in some concrete form.] The works may be prose, music, art, dance, or drama. They may take a variety of formats including print, audio or video recording, or electronic format. The only other requirement is that the work be original, but the courts have interpreted the originality standard as requiring only a low level of creativity. Ideas and facts are not copyrightable but the expression of ideas and facts are. Registration with the U.S. Copyright Office and the publication of notice on the work itself have not been required to gain protection since the passage of the Berne Convention in 1988, although these formalities are still encouraged in order to establish a paper trail for ownership of a copyright. Registration grants some special benefits such as being able to ask for statutory damages or attorney's fees in case of infringement. Registration also facilitates lawsuits to defend one's copyright.

WHAT IS "FAIR USE"? HOW DOES IT APPLY TO COPYRIGHTED MATERIAL?

Even if a work that is protected by copyright has been seemingly infringed, the apparently "infringing" activity may be deemed lawful by a court under the fair use doctrine. Fair use serves as a defense, under certain conditions, for individuals who have made copies of a protected work for which explicit permission has not been granted. It limits the copyright owner's monopoly by reserving to others the right to make reasonable uses of copyrighted materials without the specific consent of the copyright holder. When a court considers a claim of fair use, both the rights of the user and the rights of the author are considered. The burden of proving fair use is on the individual who has copied the materials. Persons who are relying on the fair use provisions to make unauthorized copies need to be aware that the U.S. Federal Copyright Law is vague and can be interpreted in many ways. If a person produces a photocopy using his/her interpretation of the factors outlined in the fair use section of the law there is no guarantee that his/her copy of the copyrighted materials will be found to be non-infringing. That is for a court to decide.

Fair use is covered in Section 107 of Title 17 of the U.S. Code. This section establishes four basic factors to be examined in determining whether the use constitutes a fair use under the copyright law. These factors are:

* The purpose and character of the use; whether the use is commercial in nature or for non-profit educational purposes * The nature of the copyrighted work * The amount and substantiality of the portion used in relation to the work as a whole * The effect upon the potential market or value of the copyrighted work.

The person using a copyrighted work without explicit permission must be able to demonstrate in a court of law that s/he has weighed carefully these four factors and that the result of this assessment places her/his use within the intent of the fair use provision of the U.S. Code.