Cecily Zamora
Students often wonder what they can use under the fair-use law, and while this is a complex topic, there are some guidelines to help students understand their rights. Copyright law includes the principle of fair use, which allows limited reproduction of copyrighted works for educational purposes without infringing on the owner's copyright. The four factors of the fair use test are purpose and character of use, nature of the copyrighted work, the amount used, and impact on the demand for the original work. These factors must be weighed together, and while educational, nonprofit, and personal uses are generally favoured, commercial use typically weighs against fair use. Teachers and schools are protected fairly broadly, but students should be aware that fair use depends on the context and purpose of use, and permission should always be sought if there is any doubt.
| Characteristics | Values |
|---|---|
| Commercial purpose | Using a work for commercial purposes weighs against fair use. |
| Educational purpose | Using a work for educational purposes weighs in favor of fair use. |
| Nature of the copyrighted work | Using a more creative or imaginative work is less likely to support a claim of fair use than using a factual work. |
| Amount and substantiality | Using a small amount of copyrighted material is more likely to be considered fair use. |
| Transformative purpose | Using a work for a purpose different from what it was originally created for weighs in favor of fair use. |
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What You'll Learn
Using copyrighted material for educational purposes
Copyright law provides for the principle of "fair use", which allows for the reproduction of copyrighted works for certain limited, educational purposes, without requiring permission from the copyright owner. However, it is important to note that educational use does not always equate to fair use, and each use case must be carefully considered.
The "fair use test" considers four main factors to determine whether the use of copyrighted material is fair:
- Purpose and character of use: This includes considering whether the use is for commercial purposes or for nonprofit educational purposes. Educational purposes weigh in favour of fair use.
- Nature of the copyrighted work: This factor considers the type of work being used and whether it is published or unpublished. Using unpublished works weighs against fair use.
- Amount and substantiality of the portion used: This factor looks at the quantity and importance of the portion used in relation to the copyrighted work as a whole. Using more of a work weighs against fair use, but if the amount used is necessary for a transformative purpose, this factor may be neutralised.
- Effect on the market for the copyrighted work: This factor assesses whether the use of copyrighted material could decrease demand for the original work by acting as a substitute. If the use provides a substitute for the original, reducing demand for licensed copies, it weighs against fair use.
It is important to note that these four factors are not exhaustive, and other relevant considerations may be taken into account when determining fair use. Educational fair use guidelines typically apply to students and faculty of educational institutions, including schools, universities, libraries, museums, and non-profit organisations.
Educators should also be mindful of specific guidelines regarding the use of copyrighted materials. For example, instructors should not distribute consumable materials meant to be repurchased, such as workbooks or test forms. Additionally, they should consider the availability and affordability of materials for students and provide proper attribution and copyright notices when using copyrighted content.
While fair use provides flexibility for educational purposes, it is crucial to assess each situation carefully to ensure compliance with copyright laws and avoid legal issues.
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Using small portions of copyrighted material
Students can use small portions of copyrighted material under the fair use law, which allows for limited reproduction for educational purposes without infringing on the owner's copyright. This is determined by four factors:
- Purpose and character of use: The first factor is the most important. Using copyrighted material for commercial purposes weighs against fair use, whereas using it for non-profit educational purposes weighs in favour. For example, using a diagram of a biological process to teach about that process is an educational use.
- Nature of the copyrighted work: Using creative works weighs against fair use, as they are at the core of copyright protection. In contrast, using factual works is more likely to be considered fair use.
- Amount used: Using more of a work weighs against fair use. However, if the amount used is necessary for a transformative purpose, this factor is neutralised.
- Substitute for the original: If the use of the copyrighted material provides a substitute for the original and decreases demand for licensed copies, this weighs against fair use.
It is important to note that fair use is highly fact-specific, and permission from the copyright owner should always be sought if there is any doubt. Additionally, while educational purposes weigh in favour of fair use, the use must be transformative. Simply copying someone else's work verbatim is not considered fair use.
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Using copyrighted material for criticism and commentary
The "fair use" principle in copyright law allows for limited reproduction of copyrighted works for educational purposes without infringing on the owner's rights. Section 107 of the Copyright Act of 1986 outlines that using copyrighted material for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is generally considered fair use.
However, it's important to note that using copyrighted material for criticism and commentary must still adhere to certain guidelines to qualify as fair use. The four key factors that determine fair use are:
- Purpose and character of use: The use must be transformative, meaning it serves a different purpose from the original work. For example, using advertisements from the 1960s to discuss race in advertising is transformative. Additionally, the use must be non-commercial and non-profit in nature.
- Nature of the copyrighted work: Using a copyrighted work for educational purposes, such as teaching a specific technique or process, weighs in favour of fair use.
- Amount and substantiality: The amount of copyrighted material used should be limited to what is necessary for the transformative purpose. Using more of a work reduces the likelihood of fair use, especially if it acts as a substitute for the original, decreasing demand for licensed copies.
- Effect on the market: The use of copyrighted material should not impair or potentially impair the market for the original work.
It's worth noting that each case of fair use is highly specific, and these factors must be weighed together. While not a hard-and-fast rule, using less material where possible is generally advisable. Additionally, obtaining permission from the copyright holder is always the safest option in cases of doubt.
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Using copyrighted material for news reporting
Students and journalists can use copyrighted material for news reporting under the fair use law. However, it is essential to understand the limitations and guidelines surrounding this practice. Here are some key points to consider:
Purpose and Nature of Use
The purpose and character of the use are critical factors in determining fair use. Using copyrighted material for news reporting, criticism, commentary, teaching, scholarship, or research is generally favoured by fair use. However, the use must be transformative, meaning it should be used for a different purpose than the original work. For example, using advertisement images from the 1960s in a classroom to discuss the use of race in advertising is a transformative use. Additionally, the use should be non-commercial and non-profit in nature.
Amount Used
While there are no legal rules specifying the exact amount of copyrighted material that can be used, it is generally advised to use limited portions. The more material used, the less likely it is to be considered fair use. The key consideration is whether the amount used is necessary to accomplish your purpose. For example, quoting a few sentences from an article for criticism or commentary is more justifiable than copying entire paragraphs.
Impact on the Market
Using copyrighted material in a way that impairs or potentially impairs the market for the original work goes against fair use. If your use of the material acts as a substitute for the original, decreasing demand for licensed copies, it weighs against fair use. For instance, scanning a current bestseller and making it freely available online would likely violate fair use.
Unpublished Works
Unpublished works are generally granted stronger protection from unlicensed use. Using copyrighted material that is unpublished requires particular consideration of the copyright owner's right to control its first publication.
Educational Context
Fair use laws also apply to educational contexts. Students and educators can use copyrighted materials for educational purposes without always requiring permission. However, it is essential to refer to specific guidelines provided by educational institutions, such as Stanford University's "Measuring Fair Use" or the University of Washington's "Guidelines for Fair Use in Education."
In conclusion, while students and journalists can use copyrighted material for news reporting and other purposes under the fair use law, it is crucial to carefully consider the purpose, nature, and amount of the material used, as well as its potential impact on the market for the original work. Fair use is determined on a case-by-case basis, and specific guidelines should be consulted for comprehensive understanding and compliance.
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Using copyrighted material for research and scholarship
Copyright law provides for the principle of "fair use", which allows the reproduction of copyrighted works for limited educational purposes without infringing on the owner's copyright. Section 107 of the Copyright Act gives examples of purposes that are favoured by fair use, including "teaching (including multiple copies for classroom use), scholarship, [and] research". However, use for one of these purposes does not automatically qualify as fair use.
The Copyright Act establishes a four-factor test, the "fair use test", to determine whether using a copyrighted work qualifies as fair use. The test is highly fact-specific, and the four factors must be weighed together. The four factors are:
- Purpose: The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes. Using a work for educational purposes weighs in favour of fair use. However, using a work for commercial purposes weighs against fair use.
- Nature: The nature of the copyrighted work. Unpublished works tend to receive more copyright protection, as the law values the creator's right to decide how and when to distribute their work. "Highly creative" works (e.g. poetry, art, entertainment film, fiction novels) also tend to receive more protection than factual, non-fiction works (e.g. documentary films, educational texts).
- Amount: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Generally, the less of a work that is used, the more likely it is to fall under fair use. However, if the amount used is necessary for a transformative purpose, this factor is neutralised.
- Substitution: Use of the copyrighted work decreases demand for the original work by acting as a substitute. If your use provides a substitute for the original and therefore decreases demand for licensed copies, that weighs against fair use.
It is important to note that fair use law does not set absolute limits on how much of a work may be used, and other factors and subfactors may outweigh the amount used. Additionally, the classroom exception in section 110(1) of copyright law allows instructors to display or show entire copyrighted works during face-to-face classroom sessions, independent of fair use.
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