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Saturday, June 10, 2006

Fair Use v. Public Domain

Copyright 2006 Tonya M. Evans-Walls, Esquire. All rights reserved.

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In podcast #5, I discuss the plague of plagiarism and clear up the confusion between it and the broader context of copyright infringement. I noted that it is important to determine whether permission to use someone else's work is required or whether fair use exists. If the work that you'd like to use in your own work is in the public domain, however, no permission is needed.

But people often confuse the terms "fair use" and "public domain" so hopefully this blurb will clear up the confusion. The following is an excerpt from my book Copyright Companion for Writers:

The doctrine of fair use significantly limits copyright protection. This doctrine permits use of copyrighted materials for certain purposes listed in the Copyright Act, such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. While technically infringing on the copyright owner’s rights, these uses are considered permissible; and such fair use can be used as a defense against a claim of copyright infringement.

The concept of fair use should not be confused with the concept of public domain. With fair use, copyright protection exists and a copyright infringement occurs, but fair use is a legal defense to infringement that “excuses” the violation. On the contrary, when a work is in the public domain it has no copyright protection, and anyone can freely use the work. Therefore, the public – rather than a particular individual or entity – owns the work. A work might be in the public domain for one of four reasons: (1) the term or copyright protection has expired; (2) the author failed to fulfill a requirement (known as a formality) and therefore lost the right to receive copyright protection; (3) the work was created by the U.S. government or for some other reason is not protected by copyright law; or (4) the copyright owner actually dedicated the work to the public domain.

Be sure you understand the difference!

Write on,
Tonya Evans-Walls

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