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Copyright & Fair Use: Introduction

The Purpose of Copyright

The purpose of copyright is to offer authors financial incentive to create and share their work.  Initially, the term of exclusivity was no more than twenty-eight years.  By 1998, the term had been extended to seventy years plus the life of the author.

History of Copyright in the United States

The Constitutional Provision Respecting Copyright

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

United States Constitution, Article I, Section 8. [Constitutional Committee on Detail] 1787


In 1947 United States Copyright Law became Title 17 of the U.S. Code.

The purpose of copyright is to offer authors financial incentive to create and share their work.  Initially, the term of exclusivity was no more than twenty-eight years.  By 1998, the term had been extended to seventy years plus the life of the author.

For more recent legal decisions related to fair use, see these summaries of recent cases.

Transformative Use

If your use of a copyrighted work is transformative then it's probably fair use.  Transformative means that something new has been created rather than just a copy, Scholarly critique and parody are common forms of "transformative use."

Stanford has a great page that explains this more fully.

The Fair Use Exemption

The Fair Use Exemption

From the onset, Congress sought to maintain a balance between the creators’ and the users’ rights.  One way this was accomplished, which would be of particular relevance to the academic community, was to apply the Fair Use Exemption (Fair Use was introduced in the case of Gyles v Wilcox, 1740, UK.  Here, the courts created a doctrine of “Fairness Abridgement” which eventually evolved into the modern concept of “fair use.”)

Why has the term length tipped the balance so far in the creators’ direction?  The ability to infinitely reproduce copyrighted material through digital means has caused loss of revenue for the rights holders which in turn has created an intimidating litigious landscape.  The content owners’ successful lobbying for increased protection has been their means of holding the line.  However, the only way for a true balance to exist is for both sides to be vigilant in exercising their rights. Fair use is an important tool in determining what copyrighted information can be used without permission.  Unfortunately, because it requires judgment, many people pay copyright fees rather than apply the exemption. 

Ultimately, that strategy will work against us--the content consumers: Fair Use is like a muscle that needs to be worked, and if we don’t use it our rights may disappear.  The Copyright Committee is available to help you navigate the factors in making a decision to exercise the Fair Use Exemption.  This effort will benefit you, your students and fellow academicians.   

Fortunately, there is a growing movement which is making educators less dependent on copyrighted works.  The movement has many names: creative commons, open access.  Using O.A. journals for research and publication will help them to flourish and to provide scholarship that is not restricted by copyright.