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Copyright 4 Educators (US)

Week 3

Tara Wheatland's picture
Sat, 2010-09-04 01:07

Week 3 - Limitations to Copyright: Fair Use
Goals: This week you will learn about limitations to an author's exclusive rights, in particular fair use, and how fair use applies to your uses of copyrighted materials as an educator, as well as student use.

Background:  The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

Factor #1: What is the purpose of the use?
In other words, are you using the work for commercial or non-profit purposes? Non-profit purposes tip the scale toward fair use; whereas commercial purposes tip the scale against fair use. For example, showing a documentary to students in your class would weigh in favor of use; while showing it to the general public and charging admission would weigh against use.  Another question to ask is whether you are making a "transformative" use, by adding a new message or meaning.
Factor #2: What is the nature of the work?Is the work fact-based or fictional? Fair use favors the use of fact-based work over the use of fiction. For example, distributing a chapter from a science textbook would weigh in favor of use; whereas distributing excerpts from a novel would weigh against use.
Factor #3: How much of the work will be used?
Fair use favors small portions. The less of a work you use, the more this factor weighs toward use. For example, showing 10 minutes of a two-hour movie would weigh more heavily in favor of use than showing the entire movie.  However, if using the whole work is "reasonable," then it can be acceptable under fair use.  This is more likely when the original work is a single, indivisible work - like a photograph or other image.
Factor #4: What is the effect upon the market or potential market?
Simply put, this asks, “If the use was widespread, would it prevent the copyright holder from legitimately making money from the work?” For example, copying and distributing a magazine article for one-time-use would weigh toward use, while copying and distributing a play for study over the course of the semester would weigh against use.

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Since the question of whether a particular use is considered fair use, some communities have developed "Best Practices" for using copyrighted materials, some of which are provided in the reading list below.  These are not hard-and-fast rules, but they can be useful in understanding the contours of the doctrine.

Key words: defenses to copyright infringement, fair use
Reading Assignment:
Fair Use Statute (17 U.S.C. 107) (text of the law)
Stanford Fair Use Project Summary:

Reproductions of Copyrighted Works by Educators and Librarians, by the US Copyright office (note that this resource also talks about section 108 which will be the subject of next week's readings):

 Code of Best Practices in Fair Use for Media Literacy Education:
Optional Readings and Resources:
Internet Law Treatise on Fair Use (explaining some of the case law interpreting the statute)

Video on copyright and fair use: 

Code of Best Practices in Fair Use in OpenCourseWare:         

Templeton University Media Lab video explaining fair use to users: 

Discussion Questions:

These are questions provided for your understanding, to be discussed with your group and with the course facilitators in office hours.  Answers to these questions do not have to be submitted and will not be part of your grade..

Scenario 1: An English teacher prints a classroom handout, and includes one paragraph from a book to show pithy writing.   Is this fair use? Which factors weigh in favor of fair use, and which against? What facts lead you to your conclusion? 

Scenario 2: An English teacher makes photocopies of one chapter of an out-of-print textbook on English Composition for each of her students.  She keeps a master photocopy on file for future use.    Is this a fair use?  Which factors weigh in favor of fair use, and which against? What facts lead you to your conclusion? Is the outcome different or the same as Scenario 1?  Why or why not?

Scenario 3: A textbook publishing company finds an excellent website by an English teacher made publically available on the Internet.  The publisher copies the website word-for-word in a new edition of an English composition textbook and gives the teacher credit.  Is this a fair use? Which factors weigh in favor of fair use, and which against? Is the outcome the same or different from Scenario 1 and Scenario 2? Why or why not in each case?