Four Things You Should Know About 合理使用
One of the rights of the owner of copyrighted works is the right to reproduce or to authorize others to reproduce the work in copies. This right has certain limitations. One of the more important limitations is the doctrine of “合理使用”. Although 合理使用 is not previously mentioned in copyright law, the doctrine has developed through a substantial number of court decisions over the years.
There exists a list in Section 107 of the various purposes for which the reproduction of a particular work may be considered “公平”, including criticism, comment, news reporting, teaching, scholarship, and research.
Section 107 also sets out four factors to be considered in determining whether or not a particular use is 公平:
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the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
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the nature of the copyrighted work;
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amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Consider the above four factors by asking the following questions when you are trying decide whether to use a work in your classroom. Aim for tipping the balance as far as possible to the left (“合理使用”). In addition, here is a "合理使用" Checklist to help you determine and show your intent to use copyrighted material lawfully. Fill out the checklist and keep it on file as documentation of your genuine effort to determine if you are in compliance with the 版权 Law of the United States Section 107.
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1
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合理使用
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ADDS WEIGHT
to 合理使用
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SEEK PERMISSION
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非营利组织
Educational
个人
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(These are the
Most Protected Uses)
Criticism
Commentary
Newsreporting
拙劣的模仿
否则
“transformative” use
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Commercial
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2
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合理使用
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LITTLE EFFECT
ON THE SCALE
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SEEK PERMISSION
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事实
发表
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A mixture of fact
and imaginative
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Imaginative
Unpublished
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3
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合理使用
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SEEK PERMISSION
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(If 非营利组织,
Educational,
个人)
Small amount
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(If 非营利组织,
Educational,
个人)
More than a
small amount
(indicates lack of
harm to owner)
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(If 非营利组织,
Educational,
个人)
More than a
small amount
more than once
Commercial
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If the first factor weighed heavily on “合理使用”,
you can probably use more of a work than if it didn't.
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4
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合理使用
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SEEK PERMISSION
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After evaluation
of the first
three factors,
the proposed use
is tipping towards
合理使用
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Original is out of print
or otherwise unavailable
No ready market
for permission
版权 owner
is unidentifiable
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Competes with
(takes away sales
from) the original
Avoids payment
for permission
(royalties) in
an established
permissions market
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If the first three factors indicate that the use is likely not 公平, courts are
willing to consider lost revenues under the fourth factor. If the first three
factors tip in favor of “合理使用”, the fourth is not even an issue.
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