n.a provision in copyright law that allows the limited use of copyrighted materials without permission of the rights holder for noncommercial teaching, research, scholarship, or news reporting purposesLoC 2004aThe 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”Behrnd-Klodt 2008, 228No legal “bright line” of demarcation exists to tell when and which uses are or are not fair use, which has led to frequent fact-specific litigation.Shenk 2010, 94Recent court decisions have strengthened copyright protections for unpublished materials and have eroded the fair use doctrine. Fair use allows repositories to make preservation photocopies and copy materials for users if they are for “research and study.”Briston 2015, 43Of most relevance for archivists, Section 107 codified an explicit recognition about unpublished materials. The mere fact that something is unpublished will not bar a finding of fair use, but all four factors must be considered in making the determination.U.S. Code, 17 USC 107Notwithstanding the provisions of [17 USC] sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.
