COPYRIGHT ESSENTIALS
8 Copyright Exceptions
Kathleen DeLaurenti
Copyright in the United States incentivizes the creation of new works by providing limited monopolies to copyright holders. These monopolies last for the duration of the copyright term and allow copyright holders to control the exclusive rights to a copyrighted work granted by copyright law.
In Chapter 7: Copyright Basics, we covered the basics of copyright law and the essential licenses that apply to musical works. These licenses serve as specific avenues for copyright holders to take advantage of their exclusive rights in musical works and sound recordings. But Congress recognizes that a monopoly without exceptions can sometimes undermine copyright’s goal of encouraging and inspiring new work. Because of this flexible approach, there are some exceptions to copyright law that are important to understand.
A copyright exception allows you to use a copyrighted work without permission and without a license. When you include a quote from a copyrighted work in your research paper, you are exercising an exception to copyright called fair use. Exceptions to copyright law also allow criticism or negative reviews of copyrighted works; specific uses of copyrighted works in classrooms; and even allow the sale and purchase of used books and records. You probably encounter situations where an exception to copyright is happening every day without even noticing it.
The law also recognizes that individuals are not the only ones who need exceptions to copyright. Cultural institutions including libraries and museums have important responsibilities to foster long-term access to our many cultural heritages. To do this, libraries and archives can use exceptions to copyright that allow them to preserve, repair, or copy damaged out-of-print copyrighted works to ensure they remain accessible to students, scholars, and other library users.
In this chapter, we examine copyright exceptions that will help you manage your research-creation and teaching projects.
Fair Use
Fair use, Section 107 of the Copyright Act, is a provision that lets you use copyrighted works without permission in some situations. It is an exception unique in U.S. copyright law because it can apply to any use of a copyrighted work depending on the specific facts of the situation. Fair use asks that we analyze why we want to use a work in a particular way. If the use is reasonable based on factors outlined in the law, the use is fair. Many nonlegal experts can find fair use very confusing because there is no equation or test in the law to tell you when your use is a fair use and when it might be an infringement. This leads to many myths about fair use.
You might hear that “Fair use is a defense, not a right!” But if you read the law, the language is clear and easy to understand. Nowhere does it say that you must defend your fair use to a copyright holder in a court of law to ensure that it is fair. Novice musician-scholars often hear this ph