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that a work is unpublished shall not itself bar a finding of fair use if such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phonorecords of an unpublished work duplicated solely for purposes of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)