Does the first sale exception apply to licensed copies?
The first sale exception does not apply to licensed copies of a copyrighted work. It only applies to copies that are sold. Under the Copyright Act, the first sale exception applies only to the “owner of a particular copy.” To be an owner of a copy, a person must obtain the copy by some means that transfers ownership of the copy, for example, through a sale or as a gift. Where a person obtains the copy through a license, the first sale exception does not apply because a license does not transfer ownership rights in the copy.
If a copy is obtained through a legal download can I transfer my copy to someone else under the first sale exception?
The answer is probably no. Usually copyrighted works made available to the public through legal downloads are licensed rather than sold. The first sale exception does not apply to licensed copies. Consequently, for licensed copies the terms of the license – not the first sale exception – will determine whether the copies can be transferred.
What is fair use?
Fair use is a defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. The fair use exception permits limited use of a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The copyright law establishes four factors that must be considered in deciding whether a use constitutes a fair use. These factors are:
The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
The nature of the copyrighted work;
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.
Although one factor or another may more heavily in a fair use determination, each of the factors must be considered and no one factor alone can determine whether the use falls within the fair use exception. Usually the factors that are the most influential are the first and fourth factors. For more information, see the fair use in the Copyright Law Explained section of the site.
Is there a blanket exemption for educational uses or uses by educational institutions?
There is no blanket exemption from copyright liability for educational uses or uses by educational institutions. Although many activities associated with teaching, scholarship and research, often qualify as fair use, none of them automatically qualifies as a fair use. Whether a particular act falls within the scope of the copyright law’s fair use exception is determined on a case-by-case basis by applying the four statutory factors. In addition, to fair use there are other exceptions in the copyright law that may be applicable to acts undertaken by educational institutions. For example, the copyright law includes limited exemptions for certain uses of copyrighted materials in “face-to-face” classroom situations.