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The "Fair Use" Doctrine and the U.S. Copyright Office *

RF Cafe University"Factoids," "Kirt's Cogitations," and "Tech Topics Smorgasbord" are all manifestations of my ranting on various subjects relevant (usually) to the overall RF Cafe theme. All may be accessed on these pages:

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The "Fair Use" Doctrine and the U.S. Copyright Office - RF Cafe"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. Therein lies the authority for legislation and prosecution of rights for virtually every human creation within the jurisdiction of the country. Each nation has it own version, and international agreements help assure universal protection of a creator's rights of ownership; e.g., the "Convention for the Protection of Literary and Artistic Works" (aka the "Berne Convention") of 1886 and the World Intellectual Property Organization (WIPO). America has the U.S. Copyright Office.

Those of us involved in presenting information and referring to legally protected works of others are, or should be, concerned with laws governing how such content may be used. Fortunately, "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code," it is not too difficult to interpret if you can work through a bit of legalese. In particular, Section 107 details the meaning of "Fair Use." It is reproduced in full below. 

§ 107 . Limitations on exclusive rights: Fair use40

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.

Sections 106 and 106A, referred to in Section 107, convey a full right of reproduction and distribution of original works to authors and/or entities who legally own the content. Section 107 describes how everyone else may excerpt from the owner's work without violating his property rights. As you can see, "Fair Use" is very vague and is open to interpretation by courts. Notwithstanding the code's lack of specificity, legal precedents have been set in courts of law regarding how much of a particular type of works may be reproduced without violation. The entirety of USC Title 17 must be included when deciding. Stanford University has an extensive listing of Fair Use cases and their decided outcomes. It also summarizes "Fair Use" as follows, "In its most general sense, a fair use is any copying of copyrighted material done for a limited and 'transformative' purpose, such as to comment upon, criticize, or parody a copyrighted work." Nolo says in order to be 'transformative,' two tests must pass muster : "Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights, and understandings?"

Section 101 defines all terms used in the document. While not applicable to this discussion, "phonorecord" is used extensively throughout Part 17, and applies to reproduction of what we now refer to as "sound bites" such as those used on radio and television news broadcasts. Similarly, "Audiovisual works" covers video clips used as part of a broadcast. Notably, FCC Part 97 rules which govern amateur radio specifically prohibit the transmission of any copyrighted broadcast either as the primary content or even as secondary (background) content - including any form of music. Section 117, which almost certainly applies to everyone reading this article, describes "Limitations on Exclusive Rights: Computer Programs."

Of particular interest is Section 105 which states all material produced by a government entity is in the public domain. That explains why government documents contain a statement declaring permission to freely copy contents so long as incorporated material attributed to otherwise copyrighted works are not reproduced. In addition, generic names, slogans, and short phrases cannot be copyrighted, but they may be trademarked. Ideas and facts are considered to be in the public domain and may not be copyrighted.

§ 105 . Subject matter of copyright: United States Government works37 Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Duration of Copyright: The "Copyright Act of 1976" automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author's life plus an additional 70 years. This means that an originator (writer, painter, computer programmer, singer, musician, etc.) does not need to formally register a works with the U.S. Copyright Office in order to receive legal protection so long as it is published in a readily accessible venue. For example, the entire contents of this page is automatically protected against unauthorized reproduction by virtue of its being published on RF Cafe. Although many instances exist, two are notable in my April Fools articles claiming to be reported by the fictitious "Science News Service," with a duly mentioned bona fide being membership in the equally fictitious "U.S. Association of Science Journalists." Both names were researched extensively before using them to make certain I would not infringe on anyone else's rights, and none were found. I legally have ownership of them by virtue of the publishing, so no other entity may legally use them.

Expiration of Previous Works: Unbeknownst to many people is that statute that renders all material protected by copyright prior to 1964 to be effectively in the public domain unless the copyright holder specifically re-files for protection; to wit: Mandatory Renewal - "Works originally copyrighted between January 1, 1950, and December 31, 1963. Copyrights in their first 28-year term on January 1, 1978, still had to be renewed to be protected for the second term. If a valid renewal registration was made at the proper time, the second term will last for 67 years. However, if renewal registration for these works was not made within the statutory time limits, a copyright originally secured between 1950 and 1963 expired on December 31 of its 28th year, and protection was lost permanently." A lot of old material falls under the purview of this law, including many out-of-print books and magazines where the original copyright owner has not formally renewed the copyright. That is part of the reason so many PDF files of full cover-to-cover scans of magazines and books can be found on the Internet. An extremely useful website that does so for radio, television, and electronics material is WorldRadioHistory.com, which contains hundreds of full issues of all of the magazines from which I excerpt articles for commentary. Note that most are currently out of print, but not necessarily protected by the pre-1964 copyright exclusion. Many publishers, like the American Radio Radio League (ARRL), have their own libraries of archived issues access restricted to paid subscribers and forbid third party exploitation, so you will not find, for instance, back copies of QSL magazine on that website. I personally only use magazines which I own and manually scan, run optical character recognition (OCR) on for extracting searchable text, and clean up images with editing software.

Court cases have been decided concerning hyperlinks on one website pointing to copyrighted material on the content owner's website. Consensus appears to be that as long as the material is not behind a firewall of some sort, nothing disallows the practice. If it did, then every search engine would be in violation. However, if a hyperlink is placed on a section of text or an image that itself violates "Fair Use," then a violation has occurred, but not because of the hyperlink itself. A related practice called "framing" is less clear as to its protection against infringement. Framing involves using an HTML IFRAME element or some other programmatic means to display a 'live' version of somebody else's work 'inline' with unauthorized content. A recent European Union Court of Justice decided thus, "The owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site."

There does not appear to be any objective rule governing exactly what percentage of any owned work may be used without permission by the owner. Interpretation of "Fair Use" is largely subject to a court's whims, notwithstanding cited decided case precedence. University of Maryland University College (UMUC) created a list of guidelines to help keep you out of trouble with the law. They also warn that although your actions might not violate copyright law, you might still be guilty of trademark and/or patent and/or libel and/or plagiarism, depending on usage. Stanford University offers "Measuring Fair Use: The Four Factors" in summarizing how courts decide infringement cases.

Admission: Having written all the above, I have to confess to sometimes skirting the edge of legality in some of my works, but without malicious intent (an exception being the rare use of a thumbnail image of a 'famous person' to lampoon him/her on a political or social issue). I always attempt to provide full attribution to anything I have not created in its entirety, with a specific written note of origin, a hyperlink pointing back to the original works, or both. In no case do I ever intentionally present somebody else's creation as my own, just as I would resent somebody doing so with my creations. Perhaps my most questionable practice is when I post an entire article from one of the old electronics magazines, complete with included photographs, and include my personal commentary at the beginning (thereby fulfilling the 'transformative requirement). Full attribution is always provided to the original owner via a copy of the table of contents page that includes publisher information and claims of exclusive use. To my knowledge, none of the articles come from issues dated prior to 1964. Unless otherwise stated (no instances come to mind), my use of another author's or artist's material specifically seeks to promote both the original works and the subject matter contained therein. Furthermore, my About RF Cafe webpage specifies my view on trademarks and copyrights, including an invitation for anyone believing I have violated their rights to a particular creation to contact me with a request that it be removed. Only one instance of that happening comes to mind, and that involved a court case where the contested text was a quotation with permission for and attribution to another author's remarks; it was duly removed.

In summary, the best practice is to be absolutely certain that your works do not knowingly incorporate someone else's material, to be careful not to even come close to violating someone else's work in copying him/her without permission, to request and receive in writing permission to use only the content you plan to reproduce (preferred), or roll the dice and hope nobody will successfully sue you for infringement. Know for sure though that legions of lawyers and paralegals personally and with the assistance of computer programs continually scour the Internet for new court cases. You have been warned ;-)

See also You've Heard of a Copyright, But How About a Copyleft?

Disclaimer: Remarks made by me on this page are purely my interpretation of U.S. codes and in no way is intended to be a citable source for legal purposes. You are encouraged to conduct your own research and/or consult qualified legal council when considering whether material you have created or used is covered by copyright.



Posted October 15, 2021
(updated from original post on 4/26/2016)

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