Fair
Use
Since copyright
law begins with the idea that the copyright holder has the rights to the many
potential uses of a copyrighted work, the doctrine of fair use provides exceptions
that are of particular importance to educators. The statute can be found below.
The
Fair-Use Statute Section 107
of the Copyright Act of 1976.
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 in 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The fact that a work is unpublished shall not itself bar a finding of fair use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.
Not
all educational uses qualify as fair uses!
Unfortunately there is no simple test to determine what is fair use. Each one
of the "four factors" in the statute (see Factor 1, 2, 3 and 4 below)
needs to be examined and weighed evenly. If you determine that your proposed
use does not meet the fair use test, you need to
seek copyright permission.
Factor
1: What is the purpose and character of the use?
Educational and non-profit uses are more likely to be fair use. Commercial uses
are more likely to require permissions and/or royalty payment. Copies used in
education, but made or sold at a monetary profit (Coursepacks for instance)
are less likely to qualify as fair use Otherwise, multiple copies for classroom
use of some works are specifically allowed.
Factor
2: What is the nature of the work?
Works of criticism, comment,
news reporting, teaching, scholarship, and research are more likely to fall
under fair use guidelines than others.
This would include materials that are primarily factual such as scientific information,
mathematical equations, or historical data, and nonfiction. Unpublished historical
correspondence, out-of-print items, commercial work meant for the educational
market, commercial audiovisual works generally are not viewed as fair use. Consumable
workbooks should not be copied and distributed.
Factor
3: How much of the work will you use?
The amount should be weighed both quantitatively and qualitatively. If you use
a small amount of the whole work, rather than a large portion, it is more likely
to be fair use. On the other hand, one may use only a small portion, but still
take "the heart of the work" and that may tip the balance away from
fair use. There are no exact measures of what is allowed provided in the law.
Factor
4: What effect would the use have on the market for the original?
This factor
is complex and may be viewed by courts as the most important. It is tied to
the purpose of the use in that if the purpose is research or scholarship, rather
than commercial, a negative effect on the market may be hard to prove. If reproduction
is seen as reducing the market for the work, it may not be regarded as fair
use.
