Defenses


If you are accused of infringing someone elseís copyright in the course of performing work for the University, please notify the Office of General Counsel immediately.

If you are accused of infringing copyright and your use of the material is not for University work purposes, you should consult a private attorney if you desire legal advice. Students may receive free legal advice from Student Legal Services (919-515-7091).

The following defenses are provided as general information. To understand how the law applies to a specific situation, you should always consult with an attorney.

I. "Fair Use"

A person may make "fair use" of copyrighted material without the copyright ownerís permission if the following statutory requirements are met:

17 U.S.C. 107

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

NOTE: the fact that copyrighted material is used for teaching, scholarship, or research does not by itself mean there is "fair use." All four factors must be weighed and, on balance, favor fair use. Regarding the first factor, nonprofit uses are more likely to qualify for "fair use" than commercial uses. Regarding the second factor, works that are already published, and works that are nonfiction, are more likely to qualify for "fair use." Regarding the third factor, courts look at both the quantity and the qualitative value of the use (i.e., copying an entire work, or the qualitative heart of the work, is less likely to qualify for fair use). Regarding the fourth factor, many courts consider the commercial impact on the copyright owner to be the most important consideration. The weighing of all four factors is a subjective and fact-specific exercise. It is often hard to tell whether copying, distribution, display, performance, or the making of derivative works (the "uses" protected by copyright) can be done without the copyright owner's permission, unless one is familiar with judicial decisions in factually similar cases

II. "Face-to-face teaching"

Permission from the copyright owner is not necessary for certain classroom uses. 17 U.S.C. 110 This defense applies where:

  1. the work is performed or displayed (not altered, copied, or distributed!),
  2. by instructors or students,
  3. in the course of face-to-face teaching activities,
  4. of a nonprofit educational institution,
  5. in a classroom or similar place devoted to instruction.

Also, there is no need for permission from the copyright owner for "performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission," if:

  1. itís done as part of systematic instructional activity by a government body or nonprofit educational institution,
  2. itís directly related and of material assistance to the teaching content of the transmission, and
  3. the transmission is made for reception in classrooms or similar places devoted to instruction, or for persons who cannot get to classrooms because of disabilities or other special circumstances, or for government employees as part of their duties.

New rules for use of copyrighted material in distance learning courses are under consideration at this time.

III. "Library use"

A library is not liable under copyright law for allowing it users to do unsupervised copying on its premises. However, such copying may still give rise to liability on the part of the users.

Also, a library may make and distribute a single copy of a work, without permission of the copyright owner, if:

  1. there is no commercial advantage,
  2. the library is open to persons other than just affiliated researchers,
  3. the copyright notice is included on the copy or distribution, and
  4. the purpose of the copy or distribution is either
  1.  
    1. preservation of an unpublished work,
    2. replacement of a published work that is deteriorating or damaged or lost if a replacement cannot be purchased at a fair price,
    3. to acquire from another library a copy of a single article or small part of a work for the private study of a library user, or
    4. to supply a library user with all or most of a copyrighted work for private study, if the work cannot be obtained at a fair price.

17 U.S.C. 108.

IV. "Public domain"

Some works are not protected by copyright and therefore fall in the public domain. For example, works created by a United States government employee within the scope of employment, and works for which copyright has expired (generally, 70 years after the life of the author). Once a work is in the public domain, it may be used without obtaining copyright permission.

This is a summary of the most common defenses to infringement. There are many aspects to these defenses, and possibly other defenses, that will depend on the particular facts of each case. Please consult with an attorney for advice.

Additional information can be found in the Copyright Permissions Guide provided by NC State's Scholarly Communications Center.

 




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