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Copyright Law And Fair Use

If I copy copyrighted material from a Web site, when does "fair use" protect me?

People commonly feel that the Internet is different from books and tapes. A person who wouldn't think of making one thousand photocopies of a book or software disk often has no problem copying and pasting text from an Internet site.

I believe that this idea that copying Internet material is acceptable goes back to the Dark Ages of the Internet. The Dark Ages was the period before most of you heard of the Internet or dreamed the dream of signing on. (Scientists have used carbon dating in an attempt to pinpoint the Dark Ages and have determined that they ended about two years ago during the term of a certain President Clinton.)

In the Dark Ages, people DID freely exchange information and other material via the Net. It was considered bad Netiquette to restrict the free copying of material.

Still, Netiquette and law were, and are not necessarily, coextensive. Even in the Dark Ages copyright law applied to material from the Net.

You Need Permission

I caution you again as I did a few weeks ago. Just because copying is as easy as a few keystrokes when dealing with Internet material, it still might be a copyright infringement.

If you want to copy material from a web site, the starting point is to read the copyright notices on the site. If the notice gives you permission to do the copying that you contemplate, then feel free to do it.

If the copyright notice restricts you or if there is no notice, you should contact the owner of the copyright to request permission for the copying that you're contemplating.

Fair Use

Now that I have you scurrying about trying to destroy the evidence of all the illegal copying that you've done since that first time you signed onto the Net, I have good news. Everything above is a lie.

Well, not really a lie, but there are several broad categories of exceptions to the general statements that I made. Still, express permission of the copyright owner is always the best way to go. Here, I'm going to briefly explain the most important exception to the need for permission. It's called "fair use" and it's what I alluded to several weeks ago.

"Fair use" is what makes it okay for you to copy a small part of a book without permission and for a teacher to make a few copies of a newspaper article for her class. There's no explicit statutory guidance on this. Nothing says one page is okay, but two isn't. What we have is a law which gives us four factors to evaluate.

The first factor is the purpose and nature of the use. Here, education is good and profit bad. So if it's for educational use, spontaneously made by a teacher and not to be incorporated in a book, it looks like "fair use." Copying the contents of a web page into an e-mail that you send to your paying clients looks like an infringement.

The second is the nature of the copyrighted work. The law tolerates copying facts more than copying a creative writing work. For example, you could copy my prior sentence word for word in a research paper and it would be "fair use." It was a simple factual example and there are just so many ways to say it.

The third factor is the amount copied in relation to the size of the whole copyrighted work. So, if you copy a full page from a four-page web site, that looks like an infringement. If you take that single page from an online encyclopedia, it's probably "fair use." (Of course, passing it off as your writing might be unethical plagiarism, but that doesn't necessarily make it illegal.)

Finally, the effect of the use on the potential market for, or value of, the copyrighted work. So if you copy an entire article from CNN's web site, that feels like an infringement. You've reduced the market for their site. The recipient of your copy has no need to visit CNN's site. You gave them the article. If you copy the headline and first paragraph, and then give them CNN's Internet address, that's probably "fair use." If anything, you've helped create a potential market by giving a teaser sample of the whole article.

As you can see, a "fair use" analysis can get complicated. Worse, "fair use" rarely absolutely insures that copying is not an infringement. My advice-unless you feel extremely confident that your use is "fair use," get the copyright owner's permission before you copy material. This advice applies as much to online material as to traditional printed material.



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