Re: Fair Dealing / Fair Use

It is a user right. Just as I have a right to take a picture of a copyrighted architectural work (a building) from a public place, so I have a right to fair use of a copyrighted work.

It is a defense. Just as I have a defense to a claim of infringement based on a statutory right to take a picture if the copyright holder of the copyright in the building sues because I made a copy or derivative work by taking a picture, so I have defense to a claim of copyright infringement by copying something that someone else owns the copyright to if I can show that the copying comes under the category fair use.

Both are limits on the rights of the copyright holder. Both are rights given to users. Both are defenses to claims of copyright infringement.

Their is a nice theoretical issue as to whether the right way to say it is that there is an infringement, but the infringer is protected by a privilege, or whether there is no infringement at all. I view it as there being no infringement at all. If I have not stepped past the bounds of the rights of the copyright holder, I have not infringed those rights.

I like my reading best -- and it seems to be how the statute is written:

"107. Limitations on exclusive rights: fair use

. . . the fair use of a copyrighted work . . . is not an infringement of the copyright. "

The other limitations sections generally have similar language: "it is not an infringement of copyright" to do . . . .

I
On Feb 8, 2006, at 1:05 PM, Bernard Katz wrote:

> Profesor Jamar's response, while somewhat illuminating, doesn't
> clarify for me the status of "fair use" in the USA. Yes, it is part
> of the (C)
> statute. But is it a user right, or a statutory defence? Or perhaps
> what Jamar is saying is that there is no real distinction between
> the two?
> Cheers,
> Bernard Katz, former head, Special Collections and Library Development
> McLaughlin Library, University of Guelph
> author, descriptive bibliog. of L.M. Montgomery's books (in
> progress)
> and former chair, Ontario Library Association Copyright Task Force

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"Example is always more efficacious than precept."

Samuel Johnson, 1759