Did you know that the Copyright on your written work was subject to a “Fair Use Clause, or that the copyright law predates the ratification of the First Amendment and the Bill of Rights?

The first federal Copyright Statute – a.k.a. Intellectual Property (IP) law – was passed by the First Congress on May 31, 1790. The law was written for the express purpose of encouraging learning that was socially beneficial. President George Washington signed the bill into law, and created a set of exclusive rights. Those rights allowed authors to copy, print, and sell their expressive works. However, the law only applied to U.S. citizens, and there was no automatic copyright until much later.

If the document was registered, the original Copyright term lasted for 14 years, with one renewable 14-year term. It was later changed to 28 years plus 14 by Andrew Jackson(1). Today,  works created after January 1, 1978, have Copyright protection for the author’s life plus 70 years.

The law also allowed authors to bring private lawsuits to recover monetary damages against infringement. In addition, it holds accountable anyone who copies, imports, or sells the copyrighted works without permission. The United States has established Copyright relations with most countries worldwide. However, that does not mean an infringement can be successfully prosecuted in another country. Particularly in China, where there were a total of 28,528 I P infringement cases in 2020, up 28% from 2019(2).

In 1976, Congress made significant changes to the Copyright law. One major difference was that the author’s work is automatically copyrighted once fixed in a tangible medium, such as a printed manuscript, a document saved to your computer, or a published book. However, you cannot sue someone for copyright infringement unless you have registered your Copyright. (NOTE: BookLocker.com offers copyright registration services to its authors.)

Another change was that Congress decided that the intent of the original law was NOT to give copyright holders complete control of their works. So, they passed the “Fair Use Clause”(3). This addition to the Copyright Act limits the exclusive rights of copyright holders. The law says that any use of the author’s work that is considered “fair” does not infringe on the author’s Copyright. It applies even if Fair Use violates one of the copyright holder’s exclusive rights during the initial protection period.

The Fair Use Clause allows some consumers to copy, all or part of, a copyrighted work even if the author has not given permission or objects to the use of their work. Although Fair Use has been challenged many times, the Supreme Court has described Fair Use as “The guarantee of breathing space for new expression within the confines of Copyright law.”

No clear-cut rules for deciding what’s Fair Use exist. After balancing the four factors listed in section 107 of the Copyright statute, the judge must decide on a case-by-case basis.

Those factors involve:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used
4. The effect of the use on the potential market or value of the copyrighted work

The complete definition can be found at https://www.copyright.gov/fair-use.

What have the courts found to be Fair Use in the past? Previously, the courts had found that a use was fair when the copyrighted work was socially beneficial. This ruling goes back to the First Congress’s original intent in passing the Copyright statute. Predominantly, U.S. courts have recognized the following as fair uses: news reporting, criticism, teaching, scholarship, comment, research, and parodies (spoofs).

Antaeus Balevre writes from a lakefront home in Southwest Florida. While cleaning toilets in a bar at age nine, he wrote his first poem on heavy-duty toilet paper. Antaeus is the author of The Prepared Citizen, a three-book series on Situational Awareness. Antaeus has also written several action-adventure, sci-fi, and humorous fantasy novels. Antaeus can now afford to use actual paper to write on, but instead, he prefers to write digitally.