Get to the point, James on Fair Use

Lawyers are not generally known for being concise and direct, but maybe I can lay aside my lawyering hat for a moment and talk about copyright law's Fair Use Doctrine. That said, I am forced to point out that there is no clear-cut definition. You cannot say copying one paragraph is OK and two paragraphs violates Fair Use. Whenever you get into a discussion about what can and cannot be copied without arising to a claim for breach of copyright, you have to consider the players. For reference, here is the Fair Use Statute again:

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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 You cannot focus on any one of the considerations to the exclusion of the others. Fundamentally, there is an implication in this exception to the copyright law, that we are talking about material that is clearly copyright protected. In one recent case involving a claim of copyright infringement, I quickly determined that the claimant had copied the material from another source. Sorting out who owns the copyright can be a very difficult to resolve. In another case, the claimant had copied a 19th century document and claimed current copyright protection. In these cases we have an issue of provenance. Genealogists should be acquainted with this issue, sometimes referred to as the chain of custody.

I think the issue of copyright does not become a concern in genealogy because usually, we are dealing with documents that date back long enough that copyright is not a concern. Most of us are making copies for our personal use (which may never again see the light of day). Where we get into copyright and the Fair Use doctrine is when we try to copy an entire work, i.e. a Blog post, without a second thought as to the ownership of the original. First copy machines and now the Internet make copying whole books a trivial activity. But you can search in vain for any provision of the law that says that the ease of making a copy is a factor in Fair Use. In addition, you need to remember that, under our current U.S. law, it is not necessary to have a "copyright notice" on a document or work in order to have a copyright.

So I come across a chapter in a relatively recent book about the history of the town where my family lived. Can I safely copy the entire chapter? Here are the questions to ask:

• What is the purpose for the copy? Personal use or commercial use. For example, do I intend to further publish the account or merely use it for personal reference?
• Is the book commercially available? Could I easily purchase the book? Am I making a copy simply to avoid purchasing the entire book?
• How much of the book is being copied? Is the chapter essentially the whole book or merely one portion of a much longer work?
• Will my copy keep others from purchasing the book? 

These questions will only lead to further questions if there is a claim of copyright infringement. Finally, (although in law you soon learn there is no finally) attribution (citing a source) does not excuse copyright infringement.

How would I know if you copied my blog post entirely and published under your own name? This is where we get into the players in the action. The person who automatically owns the copyright has to take some action to protect the interest. I am sure you have seen the chain emails that go around. Almost always the copied work is subject to a copyright claim, but if the original owner does nothing to protect the interest, then multiple copies of the work may arguably put the work into the public domain.

By the way, finding republication on the Internet is extremely simple. Most colleges and universities routinely require their professors to do a simple search to see if student content is original or not. In fact, there is software that automates the process. In the case above, where the copyright claimed involved previously copied material, all I did was copy a sentence and did a Google search on the sentence. I found the exact text in seconds in other publications. I can do the same with my blog posts.