Technology makes it extremely easy to share digital artifacts, and hence re-use the original work of others. However, just because it’s easily done does not make it lawful. Copyright law governs when this sharing is permitted and when it is not. In this post, we’ll delve into a special provision of copyright law which permits sharing original content, Fair Use.
The Fair Use exception to the Copyright Act of 1976 allows you to use the work of others as long as it meets certain criteria. While the term Fair Use is something that many in education are familiar with, it cannot automatically be applied just because it meets a limited set of criteria. All of its criteria must be weighed before a decision can be reached. We will discuss factors that should be considered to make this determination. We’d like to stress that these are guidelines, and not static rules, for Copyright Law is very subjective.
The first factor addresses the question: for what purpose do you need to use the material? If the use is for education, research, or nonprofit then this supports a case for Fair Use. If the purpose was to make a profit off of the work, or was purely for entertainment purposes, then this would not support the application of Fair Use.
If the purpose of the work is to be transformative (the original work has been modified and re-purposed), then this weighs in favor of Fair Use. For example, if parts of a fictional story and the associated characters were used to teach math, this may qualify as being transformative therefore giving it a factor weighing in favor of invoking Fair Use. Criticisms are also protected by Fair Use, giving the critic permission to use a portion of the owner’s work in order to emphasize points during the critique.
The second factor attempts to discover how much material is appropriate to use. This factor is heavily dependent on purpose. For example, if a work is that of parody, then a large portion of the original material could be used and still be protected by Fair Use. A large amount can also be used for educational purposes. However, if a reviewer decided to post the entire original work with only the occasional critique, than this will not be protected by Fair Use. For the most part, only a small amount can be used. Even then, it cannot be the portion that is considered “the heart of the work” for it to be exempt under Fair Use.
Another factor when considering Fair Use is to determine the nature of the work. If the work is factual or non-fiction and it is being used for instructional objectives, it will be a likely candidate for Fair Use. However if the work is fictional or highly creative, Fair Use will not likely apply. Another element that should be considered is whether the work is published. If the work in question has not been published, then the usage may not be protected by Fair Use.
The final factor to consider is the effect of re-using the copyrighted material. This factor considers the question: how will the use of the material affect the sales of the original copyrighted work? Duration, availability, and quantity are all aspects to consider. If the material is going to be used for a limited time and will only be released to a small group, then Fair Use is likely to apply. However, if the material is used repeatedly for a long duration and is released to the public, Fair Use will no longer be applicable since it could possibly serve as a replacement of the original copyrighted work, therefore distracting from the potential market.
Copyright law is very subjective and it can be a challenge to know when the Fair Use exception will apply. The four factors of Fair Use (Purpose, Amount, Nature, and Effect) serve as guidelines to consider when determining whether the Fair Use exception will apply. Purdue’s University Copyright Office (http://www.lib.purdue.edu/uco/contact.html) has more resources and information on copyright, including an excellent contact for personal consultation And since we are speaking law, we should end with a disclaimer: any information in this blog or on the University Copyright Office website should not be considered legal advice.