Many of the materials that teachers use are protected by copyright,
and thus copyright law can either clear the opportunity for the desired use,
or it can set restrictions.
Faculty members are most likely familiar with copyright as a limit on the reproduction
or distribution of works. But the law also secures to the copyright owner exclusive
rights of "public display" and "public performance." For
example, the showing of a picture to students can be construed as a "public
display." The playing of a videotape in class can be a "public performance."
Although the law gives such rights to the copyright owner, the statutes also
exempt some performances and displays for teaching purposes, thereby allowing
the uses to occur in class or through distance education without fear of infringement
and without need to seek permission. However, UDit maintains a strict policy
to seek permission from the video company/producer before playing that particular
videotape. This could take several days.
Fair Use: The 4 Factors
Educational purposes only does not make it allow for fair use. Users must analyze
four factors in order to conclude whether or not an activity is lawful. (each
of the factors is subject to interpretation as courts struggle to make sense
of the law)
Section 107 <http://www.law.cornell.edu/uscode/17/107.html>
of the Copyright Act <gopher://wiretap.spies.com:70/00/Gov/Copyright/US.Copyright.1976>[3]
sets forth the four fair use factors which should be considered in each
instance, based on the particular facts of a given case, to determine whether
a use is a "fair use": (1) the purpose and character of the
use, including whether 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 following is a brief explanation of the four factors from the fair-use statute.
Keep in mind that fair use requires weighing and balancing all four factors
before reaching a conclusion.
Purpose.
Congress favored nonprofit educational uses over commercial uses. Copies used
in education, but made or sold at a monetary profit, may not be favored. Courts
also favor uses that are "transformative," or that are not mere reproductions.
Fair use is more likely when the copyrighted work is "transformed"
into something new or of new utility, such as quotations incorporated into a
paper, and perhaps pieces of a work mixed into a multimedia product for your
own teaching needs or included in commentary or criticism of the original. For
teaching purposes, however, multiple copies of some works are specifically allowed,
even if not "transformative." The Supreme Court underscored that conclusion
by focusing on these key words in the statute: "including multiple copies
for classroom use."
Nature.
This factor examines characteristics of the work being used. It does not refer
to attributes of the work that one creates by exercising fair use. Many characteristics
of a work can affect the application of fair use. For example, several recent
court decisions have concluded that the unpublished "nature" of historical
correspondence can weigh against fair use. The courts reasoned that copyright
owners should have the right to determine the circumstances of "first publication."
The authorities are split, however, on whether a published work that is currently
out-of-print should receive special treatment. Fair use of a commercial work
meant for the educational market is generally disfavored. Courts more readily
favor the fair use of nonfiction, rather than fiction. Commercial audiovisual
works generally receive less fair use than do printed works. A consumable workbook
will most certainly be subject to less fair use than would a printed social
science text.
Amount.
Amount is measured both quantitatively and qualitatively. No exact measures
of allowable quantity exist in the law. Quantity must be evaluated relative
to the length of the entire original and in light of the amount needed to serve
a proper objective. One court has ruled that a journal article alone is an entire
work; any copying of an entire work usually weighs heavily against fair use.
Pictures generate serious controversies, because a user nearly always wants
the full image, or the full "amount." On the other hand, a "thumbnail,"
low-resolution version of the image might be an acceptable "amount"
to serve an education or research purpose. Motion pictures are also problematic,
because even short clips may borrow the most extraordinary or creative elements.
Motion pictures are also problematic, because even short clips may borrow the
most extraordinary or creative elements. One may also reproduce only a small
portion of any work, but still take "the heart of the work." This
concept is a qualitative measure that may weigh against fair use.
Effect.
Effect on the market is perhaps even more complicated than the other three factors.
Some courts also have called it the most important factor, although such rhetoric
is often difficult to validate. This factor means fundamentally that if you
make a use for which a purchase of an original theoretically should have occurred-regardless
of your personal willingness or ability to pay for such purchase-then this factor
may weigh against fair use. "Effect" is closely linked to "purpose."
If your purpose is research or scholarship, market effect may be difficult to
prove. If your purpose is commercial, then adverse market effect is often presumed.
Occasional quotations or photocopies may have no adverse market effects, but
reproductions of software and videotapes can make direct inroads on the potential
markets for those works.
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References
Sections of the Copyright Act may be found in Title 17 of the United
States Code.
The full citation to the "House Report" is as follows: U.S. Congress,
House Committee on the Judiciary, Copyright Law Revision: H. Rept.
94-1476 on S. 22, 94th Cong., 2d Sess., 1976.
Kenneth D. Crews
Associate Professor of Law and of
Library and Information Science
Director, Copyright Management Center
Indiana University-Purdue University at Indianapolis