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Notwithstanding the provisions of sections
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The fact that a work is unpublished shall not itself bar a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.
(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 copy-right 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an unpublished work duplicated solely for purposes of preservation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).
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