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copyright of unpublished manuscripts and fair use doctrine

Nov 21, 2001 06:40 AM
by Eldon B Tucker

At 07:57 AM 11/21/01 -0600, you wrote:
"That is,
the works that are published in the U.S. before 1923 is in
the public domain."

I personally had a situation when I dealt with another well-known
"theosophist" in the US who claimed that no one has the right to even
disclose anything unpublished without the permission of copyright holder.
This was the case some years ago. If this were the case, even newsmedia
cannot report about any unpublished material. US Congress finally fixed it
several years ago permitting quoting from unpublished material under the
fair use doctrine. The fair use doctrine also applies to copyrighted
material as without such a doctrine one cannot even write a review of any
published material. I hope this info may interest someone.

I looked at the copyright FAQ at


There is also a document on the fair use of copyrighted
materials at


-- Eldon

---- from the FAQ ----

How long does copyright last?

The Sonny Bono Copyright Term Extension Act, signed into law on October 27, 1998, amends the provisions concerning duration of copyright protection. Effective immediately, the terms of copyright are generally extended for an additional 20 years. Specific provisions are as follows:

* For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author's death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year
of first publication or 120 years from the year of creation, whichever expires first;

* For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047;

* For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured. For further information see Circular 15a.

How much of someone else's work can I use without getting permission?

Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See Circular 21 and FL 102.

---- from the Fair Use document ----

Section 107 also sets out four factors to be considered in
determining whether or not a particular use is fair:

(1) the purpose and character of the use, including whether such
use is of commercial nature or is for nonprofit educational

(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 distinction between "fair use" and infringement may be
unclear and not easily defined. There is no specific number of
words, lines, or notes that may safely be taken without
permission. Acknowledging the source of the copyrighted material
does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General
Revision of the U.S. Copyright Law cites examples of activities
that courts have regarded as fair use: "quotation of excerpts in
a review or criticism for purposes of illustration or comment;
quotation of short passages in a scholarly or technical work, for
illustration or clarification of the author's observations; use
in a parody of some of the content of the work parodied; summary
of an address or article, with brief quotations, in a news
report; reproduction by a library of a portion of a work to
replace part of a damaged copy; reproduction by a teacher or
student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or
reports; incidental and fortuitous reproduction, in a newsreel or
broadcast, of a work located in the scene of an event being

Copyright protects the particular way an author has expressed
himself; it does not extend to any ideas, systems, or factual
information conveyed in the work.

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