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ERIC Number: ED341081
Record Type: Non-Journal
Publication Date: 1991-Nov-2
Pages: 46
Abstractor: N/A
Reference Count: N/A
ISBN: N/A
ISSN: N/A
Ante-Publication Rights and Fair Use: Free Speech, Copyright and the Four Factors.
Sanders, Wayne
This paper explores the rights of authors before publication of their works, if those works are to be published at all, and how these rights might yield to fair use of the works by other authors. Firstly, the paper examines the interests at stake of the three main groups involved: authors, the public, and people who wish to quote or closely paraphrase an author's work. Secondly, it discusses the rationale for copyright protections, fair use, and the first amendment, focusing on the Constitution and on the Copyright Act of 1976. Thirdly, the paper analyzes three recent decisions of the Supreme Court and the Second Circuit which involved quotations from unpublished works, looking at the facts of the three cases, the threshold copyrightability of the infringed material, and the four traditional fair use factors (purpose of the use, nature of the copyrighted work, amount and substantiality of the portion used, and the effect on the market). The paper's final section discusses the implications of these decisions, concluding that, as the law currently stands, the courts have put a heavy thumb on the scale in favor of ante-publication authors (leaving those who would quote or paraphrase in peril), and arguably have not advanced the quality or quantity of ideas. One hundred and twenty notes are included. (SR)
Publication Type: Speeches/Meeting Papers; Reports - Research
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers - Laws, Policies, & Programs: Copyright Law 1976; First Amendment; United States Constitution