Copyright Basics: Exceptions To Copyright Protection

Q. What is a compulsory license?

A.  The most noteworthy exception to the exclusive rights granted to copyright owners of musical works is the compulsory license.  A compulsory license means that the copyright owner must allow anyone who wants to use the copyrighted work to do so, whether the copyright owner wants to or not.  In return for this forced license, the copyright owners are reimbursed by fees set through negotiation or by the government (depending on which license applies). The six compulsory licenses are:

•    Cable television rebroadcast
•    Noncommercial public broadcasting
•    Jukeboxes
•    Digital performance of sound recordings (e.g. webcasting)
•    Digital phonorecord distribution (e.g. downloading digital copies)
•    Phonorecords of non-dramatic musical compositions (a compulsory mechanical license or cover license)

Q.  What is fair use?

A. Another noteworthy exception to the exclusive rights previously described is referred to as the fair use doctrine. Fair use provides an absolute exception to the exclusive rights of the copyright owner when another uses the owner’s work in specific ways. In cases where the fair use exception applies, permission from the copyright owner to use the work is unnecessary.

Generally, use of a copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research qualifies as fair use. While no bright line rules exist for determining whether a particular use is fair, courts rely on a four factor test. The factors are 1) the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes; 2) the nature of the copyrighted work itself, in which courts typically evaluate whether the work is factual, scientific, or artistic in nature; 3) the quantitative amount and substantiality, interpreted as the qualitative amount, of the work that is copied; and 4) the effect of the use upon the potential market for or value of the work.

Generally speaking, uses for non-commercial purposes that will not diminish the copyright owner’s ability to make money from the work are considered fair use. As a result, permission from the copyright owner for those uses is unnecessary. However, if there is doubt about whether a use is fair, err on the side of caution and get permission or speak with an attorney.

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