A Note on Copyright

United States Code, Title 17, Chapter 1, 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

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

(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


As Applies to This Index

Four factors to be considered are itemized. These four do not constitute not a list of tests each of which must be passed. Instead, these (and potentially other) factors are to be considered and weighted.

1a) Purpose. The preamble lists fair use purposes. It is not a restrictive list and I argue that 'indexing' is a fair use. Regardless, the purpose of this index is to aid scholarship which is explicitly listed as a fair use.

1b) Character. This index is of an entirely different character than the original, a fictional novel whose purpose is entertainment.

1c) Commercial vs. nonprofit. This index is freely accessible.

2) Nature of work. I think we can agree that fictional novels are deserving of copyright protection.

3a) Amount copied. This index contains only scrambled phrases. Unscrambled, they compose the entire work, but this is no more than is necessary to achieve its fair use purpose.

3b) Substantiality of copy. None. This index does not make a substantive copy because it is unusable without the original.

4) Effect. This index does not harm the work; it aspires to promote interest in the work.

Although the original work deserves copyright protection, granting the above, it is clear that this index is a fair use. In fact, even a commercial index would be fair use.



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