Re: Re: Fair Dealing / Fair Use

At 6:50 PM -0500 2/8/06, Steven Jamar wrote:
>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.

If it is privileged, it isn't infringement. The issue is whether the unauthorized use is infringing or non-infringing. Some uses are non-infringing because they are outside the limitations upon the exclusive rights granted to the copyright holder (eg., first sale); while other uses are non-infringing because they are within the privileges granted to the user (fair use).

John Noble

At 6:50 PM -0500 2/8/06, Steven Jamar wrote:
>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>mailto:stevenjamar[_at_]gmail.com
>
>Washington, DC 20008
><http://www.law.howard.edu/faculty/pages/jamar/>http://www.law.howard.edu/faculty/pages/jamar/
>
>
>"Example is always more efficacious than precept."
>
>
>Samuel Johnson, 1759
Received on Fri Feb 10 2006 - 22:00:00 GMT