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The Law
Fair Use
Section 107
of the Copyright Law allows for the "fair use" of a
copyrighted work for purposes such as criticism, comment, news reporting,
teaching, scholarship, or research. Additional guidelines (H.R. Rep. No.
94-1476, and The United States Copyright Law: A Guide for Music Educators)
permit multiple copies for classroom use under certain circumstances.
The following four factors, taken together, determine what
constitutes fair use. The first three factors are usually important in
determining the fourth.
- "The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
- This provision permits certain duplication of library materials for the purposes of
scholarship, research, and teaching in all areas of music study. Students
and faculty members may make copies of protected materials for such uses,
and librarians are permitted to make one copy of protected materials for a
user upon the submission of a signed request with the adjoining copyright
disclaimer statement. Section 107 applies to all copyrighted works.
Certain specific uses not in the non-profit educational domain can also
qualify under this provision, for example when a paid reviewer quotes
briefly from a copyrighted literary or musical work in a review.
- "the nature of the copyrighted work;"
- In evaluating this factor,
case history has taken into account whether a work is published or
unpublished, factual or creative. In general, unpublished and creative
works have been given more protection by the courts than published and
factual ones. MLA takes the position that most tools of music learning are
creative works in themselves and therefore cannot by their very nature be
appropriately evaluated on the factual or creative criterion. In addition,
an evaluation of fair use should acknowledge that reasonable use of
unpublished sources is critical to the advancement of music research.2
Conversely, fair use does not apply if a copyrighted work is intended to
be consumed in the course of a class assignment (such as in the case of
workbooks, text books, musical exercises, etc.).
- "the amount and substantiality of the portion used in relation to the copyrighted work as a whole;"
- This factor is related to the purpose of
the use (no. 1 above), and is usually relevant in determining the degree
of harm to the copyright owner (no. 4 below).
- "the effect of the use upon the potential market for or value of the copyrighted work."
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Criteria used to determine adverse market effect
include (a) accessibility of the work, (b) date of its creation or
publication, (c) economic life of the work, (d) price, and (e) evidence of
abandonment.
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