[SIGCIS-Members] Copyright advice sought

Rebelsky, Samuel REBELSKY at Grinnell.EDU
Sat Jul 14 12:51:36 PDT 2018

I am not a lawyer, but I'm pretty sure that fair use *is* explicitly stated as such in law, at least in US law, which is what we seem to be discussing.  Let's see … Section 107 of Title 17 (the section of US Law that specifies copyright) says

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

However, as you say, whether or not something counts as fair use is not specified clearly.   So, while the government cannot take away an individual's fair-use rights without changing the law, a court case can determine that a particular use is not fair use.

I would suggest that what counts as a 'creative work' and therefore eligible for copyright is also not stated clearly.  Certainly, there have been questions of whether compilations of information, like phone books, or mostly factual things, like maps, are subject to copyright protection.  And, in the end, no one has the "right" to copyright, except as stated in the law.  If Congress changes copyright law, those rights change.


-- SamR

Samuel A. Rebelsky, Professor of Computer Science
Grinnell College, 1116 8th Avenue, Grinnell, Iowa 50112
Office: 641-269-4410 ; Fax: 641-269-4285 ; Cell: 641-990-2947
rebelsky at grinnell.edu ; https://www.cs.grinnell.edu/~rebelsky/

The opinions expressed herein are my own, and should not be attributed to Grinnell College, Grinnell's Department of CS, SIGCSE, SIGCAS, any other organizations with which I am affiliated, my family, or even most sentient beings.

> On Jul 13, 2018, at 8:49 AM, Kimon Keramidas <kimon.keramidas at nyu.edu> wrote:
> Just a point of clarification, fair use is not a right like copyright is as it is not explicitly stated as such in law. Rather it is an exception to copyright that has been provided by judicial precedent and has been roughly outlined in copyright law but is purposefully not clearly bound. This difference is just important to know as you move forward with concerns such as this and are dealing with legal situations and specific terminology. 
> It’s kind of like driving. No one has the right to drive. The government provides the opportunity to get a driver’s license and it can be taken away. Fair use tenets can be violated as such if they are determined to be overstepped by a judge and one can then be in violation of copyright. Copyright however is automatically given to the creator upon recording of an expression in a material form and is a right that cannot be taken away.
> Cheers
> Kimon

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