Chapter Four
Fair Use (Section 107)
Copyright owners’ rights are important, but Congress did not put copyrighted works in a lockbox. A copyright owner does not have an absolute monopoly over the use of his or her work; owners’ rights are subject to other provisions of the Copyright Act that permit certain uses of copyrighted works. For those who work in libraries or schools, the most important of these rights are fair use (section 107 of the Act), the library exemption (section 108), the first sale doctrine (section 109), and the public performance exemptions (section 110).
Section 107 provides the broadest scope of protection for those who use copyrighted works. Unlike other sections of the Act that permit certain types of uses, or the use of certain types of materials, section 107 is an all-purpose exemption. Every use should be viewed under the section 107 microscope; when you try to determine whether a use is permitted under other exemptions, also consider whether it is a fair use.[1] And remember that when a use is allowed under section 107 or another exemption, you need not receive permission from the copyright owner nor pay royalties.
Most scholars trace the origin of fair use in the United States to an 1841 case, Folsom v. Marsh.[2] Jared Sparks, who had been assigned copyright in the letters of George Washington, edited them into a twelve-volume set. The Reverend Charles Upham used more than 300 pages from Sparks’ set in his own 866-page biography of Washington. To determine whether Reverend Upham infringed, Justice Joseph Story decreed that the
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