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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Copyright clarification - Fair Use

Resolved Question:

I am seeking clarification of copyright Fair Use law. If I paraphrase a short excerpt from a book and identify the author and book in the paraphrase, do I need to receive permission from the author to publish his material? The book is 280 pages and the quote is approx 343 words. Also, what are the international laws about this. The book is being published in Australia and will be distributed worldwide. The excerpt is from a book published in USA. 


 


I have attached the actual passage:


Healing Inner Child by Parenting


 


Through the brilliant work of John Bradshaw, we have a greater awareness of how our early childhood wounding and experiences can, in his words, ‘contaminate’ our adult life.


 


He states that our wounded inner children are responsible for our core beliefs.  According to Bradshaw, these core beliefs are  “ composed of our earliest feelings, beliefs and memories,[that formed] in response to the stresses of our childhood environment.” (Bradshaw, 1990)  This is becomes the filter through which our life experiences pass.  He suggests that these wounds from childhood continue to contaminate our life until we as the adult step in to witness and tend to the wounded child’s needs.  This work constitutes healing and changes the filter through which life experience is then viewed by our Inner Child.  When you heal this child, you once again have access to the transformative, creative energy of your unique self that is really God within you.  (Bradshaw, 1990)


 


John Bradshaw has created many powerfully inspiring and healing audios for Inner Child work.


and:


(Ch 3)


In his book, Healing the Shame that Binds You, John Bradshaw defines two aspects of shame. One is healthy shame that sets limits and structures within which we operate in this human incarnation.  He describes it as the emotion we feel that signals reaching the edge of our behavioural boundary.  Toxic shame, on the other hand, is the shame that is hidden, suppressed and covered up. It feels more like an identity rather than a boundary. When there is toxic shame, it is something bad or wrong about us. So instead of making a mistake and feeling bad about it (healthy shame), we are the mistake (toxic shame).  Toxic shame is something we would never tell another person about for fear of judgment or loss of love.


 

Submitted: 9 months ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 9 months ago.
YOU ASK

If I paraphrase a short excerpt from a book and identify the author and book in the paraphrase, do I need to receive permission from the author to publish his material? The book is 280 pages and the quote is approx 343 words.


ANSWER

Such a quote from a 280 page book would not give rise to a valid copyright infringement claim.


The four factors judges consider are:

(a) the purpose and character of your use


Purposes such as scholarship, research, or education may also qualify as transformative uses because the work is the subject of review or commentary.

It Appears your book is "educational" in nature and you
add value to the original by creating new information, new insights, and understandings.

This factor leans toward fair use.


(b) the nature of the copyrighted work


You are using the quote in a commercial activity but, should your work prove successful, such quote alone would not be the likely cause. Restated, you are not relying on the "good will" associated with that quote to make money.

Also, authors enjoy the right to be the first to publish their work. If you somehow obtained this quote before the book was published, you might have a problem.

Since the book has already been published, not problem here.


At worse the factor is NEUTRAL



(c) the amount and substantiality of the portion taken, and


Clearly a 300 word quote from a 280 page is de minimus, UNLESS, one can reasonably contend those 300 words are the "Heart of the work". I do not see that being the case.


This factor leans heavily toward fair use.





(d) the effect of the use upon the potential market.

You act of quoting from that book is very unlikely to hurt the market for such book - you may even help the market for such book.


Leans toward fair use.


Based on the above, it is safe to conclude your quote would be protected by the fair use exemption to copyright infringement.


YOU ASK

Also, what are the international laws about this. The book is being published in Australia and will be distributed worldwide. The excerpt is from a book published in USA.


ANSWER
The Berne Convention treaty is likely the controlling international authority.


Under the Berne Convention Treaty, the law of the country where a work is published is the controlling law. When you publish a work in the USA, USA copyright law applies. When you publish the same work in Australia, Australian copyright law applies.




Customer: replied 9 months ago.

If the copyright laws of Australia apply, and Berne Convention Treaty is the applicable rule, does that change the validity of your answer as applicable to Australia?


 


 

Expert:  replied 9 months ago.
YOU ASK

If the copyright laws of Australia apply, and Berne Convention Treaty is the applicable rule, does that change the validity of your answer as applicable to Australia?


ANSWER
The answer I gave above was based on US copyright law and the concept of "fair use."

If Australian copyright law is different, then YES, the answer I gave would not apply.


Under Australian copyright law, "fair dealing" is the similar to US "Fair use" but they are not identical.

Unlike US fair use, for Australian fair dealing to apply, the use must fall within one of range of specific purposes.

These purposes vary by type of work, but the possibilities are:

review or criticism

research or study

news-reporting

judicial proceedings or professional legal advice

parody or satire


You use would need to fall within one of those purposes and must also be 'fair'.

What is "fair" will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.

I am not that familiar with Australian copyright law and "fair dealing" so I would only be guessing if I gave you answer.

My guess would be you would be OK but such is just a guess.


montysimmons, Patent Prosecutor
Satisfied Customers: 228
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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