Copyright and Fair Use

What is copyright?

Under the Copyright Act of 1976, copyright owners have the exclusive right to reproduce, prepare derivative works from, distribute, perform, display, rent, lend, prepare, or transfer ownership of their creations.

What does fair use mean?

Under the same Act, the fair use exemption places a limit on these exclusive rights in order to promote free speech, learning, scholarly research, and open discussion. Therefore, under the Act, educators may use portions of copyrighted material if the purpose and character of the use is educational in nature. The copyrighted material must be previously published and not a substantial part of the entire work. Additionally, the marketability of this copyrighted material must not be impaired by the use. Kathy Schrock has created a nice poster to explain this to students for school projects.

There are three areas of fair use:

  • Creative fair use by authors who copy from other works to create their own work.
  • Personal fair use by individuals who copy from works for their own learning or entertainment.
  • Educational fair use by teachers, scholars, and students who copy for teaching, scholarship, or learning.

Four factors are used in determining whether a use is fair:

  • Purpose of the use
  • Nature of the work being copied from
  • Amount used
  • Effect on the marketing of the work


Checklist of factors favoring & opposing fair use:

Favoring Fair Use
 
Opposing Fair Use
  Teaching (including multiple copies for classroom use)     Commercial activity
  Research     Profiting from the use
  Scholarship     Entertainment
  Nonprofit Educational Institution     Bad-faith behavior
  Criticism     Denying credit to original author
  Comment        
  News reporting        
  Transformative or Productive use
(changes the work for new utility)
  Restricted access (to students
or other appropriate group)
  Parody        
  Important to favored educational objectives        
             
             
Favoring Fair Use
 
Opposing Fair Use
  A published work     An unpublished work
  Factual     Highly creative work (art, music, novels,
films, plays)
  Nonfiction     Fiction
             
AMOUNT USED
Favoring Fair Use
 
Opposing Fair Use
  Small quantity     Large portion or whole work used
  Portion used is not central
or significant to entire work		     Portion used is central to work
or "heart of the work"
  One-time or limited use   Repeated or long term use
  One or few copies made   Numerous copies made
  Only students in your class have access to it     You made it accessible on public web site or in other public forum
           
             
Favoring Fair Use
 
Opposing Fair Use
  User owns lawfully acquired or purchased copy of original
work		     Could replace sale of copyrighted work
  No significant effect on the market or potential market for
copyrighted work		     Significantly impairs market or potential market for
copyrighted work or derivative
  No similar product marketed by the copyright holder     Reasonably available licensing mechanism for use of the
copyrighted work
  Lack of licensing mechanism     Affordable permission available for using work
Source: Copyright Management Center, Indiana University
 Printer-Friendly Version
 

Example Scenarios

Posting Copyrighted Article to Web Page SCENARIO: A teacher has posted her class notes on a Web page available to the public. She wants to scan an article from a copyrighted magazine and add it to her Web page.

QUESTION: Is this a fair use?

ANSWER: It depends. If access to her Web page is restricted, then this is a fair use. If access is not limited, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the Web, and such conduct would arguably violate the copyright holder's right of public distribution.
 
Use of Copyrighted Music SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.

QUESTION: Can the music be included in the teacher's or student's initial presentation?

ANSWER: Yes. This is fair use if instruction is occurring.
 
Placing a Book Chapter on Your Class Web Site SCENARIO: A teacher wants to add a book chapter to a password-protected class web site

QUESTION: Is this a fair use?

ANSWER: Yes. The chapter may be added if access to the system is limited to students enrolled in the class.
 


Source: http://www.usg.edu/admin/legal/copyright/#part1

For more information: http://www.umuc.edu/library/copy.html