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Exceptions and Limitations

Section 106 in Chapter 1 of the U.S. copyright law (17 U.S.C. 106) lists the six exclusive rights copyright owners have regarding their work. However, the next sixteen sections of Chapter 1 in the law set forth many exceptions and limitations on those rights. Four of these exceptions are commonly at play in education:

  • Section 107 Fair Use - This is probably the most well known exception, yet most confusing and controversial. Fair use relies on a four-factor use analysis. Fair use was codified in the Copyright Act of 1976 (the current U.S. copyright law) and recognizes the public's interest in using copyrighted works in the educational process and to create new works.
  • Section 108 Library Exception - Working in harmony with exceptions like fair use, the library exceptions ensure that libraries serving the public and scholarly research communities will have access to copyrighted works for their non-commercial activities.
  • Section 109 Right of First Sale - This exception makes it possible for anyone to redistribute their purchased copy of a copyrighted work by resale, lending, or donation. It is one of the foundations on which libraries stand ready to lend materials in their collections to their user communities.
  • Section 110 (2) Exemptions of Certain Performances and Displays - This section exempts from infringement liability certain performances and displays of copyrighted works, typically in the context of educational or religious presentations or ceremonies. Of greatest importance to libraries is Section 110(2), which codifies the Technology Education and Copyright Harmonization Act of 2002 ("TEACH Act"). The TEACH Act is an important revision to the copyright law that ensures that new technology-based education (e.g., distance education using the Internet) may apply the principles and provisions of fair use in their curricula. Academic institutions must satisfy TEACH Act requirements in order to make its provisions available to their constituents. (Learn more about the TEACH Act.)

If the contemplated use of a copyrighted work does not qualify under the library (Section 108), classroom teaching, or distance education exemptions (Section 110), then the more general fair use test of Section 107 is generally applied because that test is much broader and more flexible.

The individual who is using the work must decide which (if any) exemption is applicable. This should be a conscious decision, rather than a decision by default or assumption. It is the responsibility of all members of the University of Connecticut community to understand the exemptions and to make a good faith determination that the use of a copyrighted work is authorized under one or more of the exemptions. A good faith determination means that the individual must understand the exemption that s/he is selecting, be able to articulate the exemption, and be able to articulate why the exemption reasonably applies to the specific situation. If none of the exemptions is applicable, then permission should be requested for the use of the work.


Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.

Information in this page was reviewed and approved by legal counsel. Please see disclaimer. Review date: October 2006.

 

Did you know...

The concepts of "fair use" and "right of first sale" do not exist in the copyright laws of many foreign countries.

As a result, libraries in such countries pay royalties for lending materials. Researchers and educators do not share the same exemptions to use copyrighted works in research, teaching and critique as their counterparts in the U.S.

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