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Sec. 107.
- Limitations on exclusive rights: Fair use
Notwithstanding the provisions of
sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or
phonorecords or by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In
determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall
include -
(1)
the
purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational
purposes;
(2)
the
nature of the copyrighted work;
(3)
the
amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4)
the
effect of the use upon the potential market for or value of
the copyrighted work.
The fact that a work is unpublished
shall not itself bar a finding of fair use if such finding
is made upon consideration of all the above factors
Sec. 108.
- Limitations on exclusive rights: Reproduction by libraries
and archives
(a)
Except as otherwise provided in this
title and notwithstanding the provisions of section 106, it
is not an infringement of copyright for a library or
archives, or any of its employees acting within the scope of
their employment, to reproduce no more than one copy or
phonorecord of a work, except as
provided in subsections (b) and (c), or to distribute such
copy or phonorecord, under the
conditions specified by this section, if -
(1)
the
reproduction or distribution is made without any purpose of
direct or indirect commercial advantage;
(2)
the
collections of the library or archives are
(i)
open to
the public, or
(ii)
available
not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but
also to other persons doing research in a specialized field;
and
(3)
the reproduction or distribution of
the work includes a notice of copyright that appears on the
copy or phonorecord that is
reproduced under the provisions of this section, or includes
a legend stating that the work may be protected by copyright
if no such notice can be found on the copy or
phonorecord that is reproduced
under the provisions of this section.
(b)
The rights of reproduction and
distribution under this section apply to three copies or
phonorecords of an unpublished
work duplicated solely for purposes of preservation and
security or for deposit for research use in another library
or archives of the type described by clause (2) of
subsection (a), if -
(1)
the copy
or phonorecord reproduced is
currently in the collections of the library or archives; and
(2)
any such
copy or phonorecord that is
reproduced in digital format is not otherwise distributed in
that format and is not made available to the public in that
format outside the premises of the library or archives.
(c)
The right of reproduction under this
section applies to three copies or
phonorecords of a published work duplicated solely
for the purpose of replacement of a copy or
phonorecord that is damaged,
deteriorating, lost, or stolen, or if the existing format in
which the work is stored has become obsolete, if -
(1)
the
library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained at
a fair price; and
(2)
any such
copy or phonorecord that is
reproduced in digital format is not made available to the
public in that format outside the premises of the library or
archives in lawful possession of such copy.
For purposes of this subsection, a
format shall be considered obsolete if the machine or device
necessary to render perceptible a work stored in that format
is no longer manufactured or is no longer reasonably
available in the commercial marketplace.
(d)
The rights of reproduction and
distribution under this section apply to a copy, made from
the collection of a library or archives where the user makes
his or her request or from that of another library or
archives, of no more than one article or other contribution
to a copyrighted collection or periodical issue, or to a
copy or phonorecord of a small
part of any other copyrighted work, if -
(1)
the copy or
phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or
phonorecord would be used for
any purpose other than private study, scholarship, or
research; and
(2)
the library or archives displays
prominently, at the place where orders are accepted, and
includes on its order form, a warning of copyright in
accordance with requirements that the Register of Copyrights
shall prescribe by regulation.
(e)
The rights of reproduction and
distribution under this section apply to the entire work, or
to a substantial part of it, made from the collection of a
library or archives where the user makes his or her request
or from that of another library or archives, if the library
or archives has first determined, on the basis of a
reasonable investigation, that a copy or
phonorecord of the copyrighted
work cannot be obtained at a fair price, if -
(1)
the copy or
phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or
phonorecord would be used for
any purpose other than private study, scholarship, or
research; and
(2)
the library or archives displays
prominently, at the place where orders are accepted, and
includes on its order form, a warning of copyright in
accordance with requirements that the Register of Copyrights
shall prescribe by regulation.
(f)
Nothing in this section -
(1)
shall be
construed to impose liability for copyright infringement
upon a library or archives or its employees for the
unsupervised use of reproducing equipment located on its
premises: Provided, That such equipment displays a notice
that the making of a copy may be subject to the copyright
law;
(2)
excuses a person who uses such
reproducing equipment or who requests a copy or
phonorecord under subsection (d)
from liability for copyright infringement for any such act,
or for any later use of such copy or
phonorecord, if it exceeds fair use as provided by
section 107;
(3)
shall be construed to limit the
reproduction and distribution by lending of a limited number
of copies and excerpts by a library or archives of an
audiovisual news program, subject to clauses (1), (2), and
(3) of subsection (a); or
(4)
in any
way affects the right of fair use as provided by section
107, or any contractual obligations assumed at any time by
the library or archives when it obtained a copy or
phonorecord of a work in its
collections.
(g)
The rights of reproduction and
distribution under this section extend to the isolated and
unrelated reproduction or distribution of a single copy or
phonorecord of the same material
on separate occasions, but do not extend to cases where the
library or archives, or its employee -
(1)
is aware or has substantial reason
to believe that it is engaging in the related or concerted
reproduction or distribution of multiple copies or
phonorecords of the same
material, whether made on one occasion or over a period of
time, and whether intended for aggregate use by one or more
individuals or for separate use by the individual members of
a group; or
(2)
engages in the systematic
reproduction or distribution of single or multiple copies or
phonorecords of material
described in subsection (d): Provided, That nothing in this
clause prevents a library or archives from participating in
interlibrary arrangements that do not have, as their purpose
or effect, that the library or archives receiving such
copies or phonorecords for
distribution does so in such aggregate quantities as to
substitute for a subscription to or purchase of such work.
(h)
(1)
For purposes of this section, during
the last 20 years of any term of copyright of a published
work, a library or archives, including a nonprofit
educational institution that functions as such, may
reproduce, distribute, display, or perform in facsimile or
digital form a copy or phonorecord
of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or
archives has first determined, on the basis of a reasonable
investigation, that none of the conditions set forth in
subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2)
No reproduction, distribution,
display, or performance is authorized under this subsection
if -
(A)
the work
is subject to normal commercial exploitation;
(B)
a copy or
phonorecord of the work can be
obtained at a reasonable price; or
(C)
the
copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that
either of the conditions set forth in subparagraphs (A) and
(B) applies.
(3)
The exemption provided in this
subsection does not apply to any subsequent uses by users
other than such library or archives.
(i)
The rights of reproduction and
distribution under this section do not apply to a musical
work, a pictorial, graphic or sculptural work, or a motion
picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall
apply with respect to rights granted by subsections (b) and
(c), or with respect to pictorial or graphic works published
as illustrations, diagrams, or similar adjuncts to works of
which copies are reproduced or distributed in accordance
with subsections (d) and (e)