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- In the U.S., content including books, journal articles, photos, audio and video can be (and for most things published in the last 50 yours or so, are) protected by copyright restrictions. Sharing these materials on Mandala can trigger copyright liability, so it is important to understand how the law works.
- This document attempts will help to orient you about:
- The nature of copyright
- The right of "fair use" as applied to non-profit research, teaching, and scholarship
- Materials in the "public domain"
- Creative Commons and other Free-to-use Content Online
- How to use Mandala in light of copyright law
- This page does not provide legal advice
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- U.S. copyright law encourages "fair use" of copyrighted materials without payment or permission in certain circumstances.
- Fair use is a flexible doctrine based on the weighing of four factors -
- the purpose of the use
- the nature of the work used
- the amount used
- the effect of the use on the market for the work
- Non-profit research, teaching, and scholarship are among the kinds of uses favored by fair use, but not every such use is fair.
- Rather, each use has to be evaluated on its own merits to determine whether, in light of the four factors, permitting unlicensed use serves the ultimate purpose of copyright: the promotion of progress in culture and science.
- Key Takeaway: In recent cases, courts have made clear that use for a new, "transformative" purpose will be strongly favored under each of the four factors mentioned above.
- In the words of Judge Pierre N. Leval, to be transformative:
- "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely “supersede the objects”' of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." - Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).
Transformative uses are strongly favored, as long as the amount used is appropriate to the new purpose.
- Courts typically find that a transformative use is not a threat to the original work's market because the use is not "substitutional"—the user is not presenting the work as a substitute for the original work, but rather is using the work for her own purpose.
- Given this turn in the law, old fair use guidelines that emphasized counting words or pre-determined percentages of a given work are no longer useful. Indeed, courts have specifically rejected the 1976 Classroom Guidelines and similar documents as undue limits on educational use.
- Fair use is a flexible doctrine based on the weighing of four factors -
- Fair use is an important right that serves the public interest in spurring creative and productive new uses of existing works. The Supreme Court has said that fair use is a "First Amendment safety valve" because it ensures copyright law does not stifle important expressive and educational activity. Fair use is not 'excused infringement' or 'tolerated use'; it is socially beneficial and encouraged by the law.
- In recent years, many practice communities have come together to describe the core, recurring contexts where they believe fair use applies to their activities. Where they apply, these best practices are a great source of guidance about what uses are considered fair.
- Links to the Best Practices documents most likely to be useful to Mandala users are included below, under "Mandala and Copyright."
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