Fair Use

Copyright laws in the United States fall under the Copyright Act of 1976 (Title 17 of the United States Code). The sections of the 1976 law that deal mainly with teaching are Sections 106 to 118. Section 107 deals with the “fair use doctrine”, that part of the copyright law that many educators feel gives them the legal right to copy anything as long as the material is being used for teaching or educational purposes. This is not necessarily so. “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such 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.” Section 107, Title 17, United States Code


These rules mean that (1) If an educator copies some materials and then includes those materials in something he/she then sells, the fair use doctrine does not apply. (2) If the material is factual in nature (e.g. if it can be found in an encyclopedia), then the fair use doctrine will usually apply. (3) If only a small portion of the copyrighted material is used, then usually fair use doctrine applies. (4) If use of the material would cause the owner to not be justly compensated, then fair use would not apply.

Remember that the Fair Use Doctrine is only a defense. Copying work that has been created someone else, whether it indicates a copyright notice or not, is still a violation of the law. The Fair Use Doctrine is only a defense to the crime of copyright violation.

The House of Representatives issued a report on the fair use doctrine in September 1976 which adds three tests to the interpretation of the fair use doctrine: brevity, spontaneity, and cumulative effect. Brevity refers to item (3) above. If only a small portion in relation to the whole document is copied then it would probably be allowed, again, as a defense. If the material was used for educational purposes, and there is not enough time to get permission to use it, then it would probably be allowed, as a defense. Cumulative effect refers to repeated use and the number of items that can be used by the same author or the same collection.

Resources:
The Educators Guide to Copyright and Fair Use Links to an external site. from Education World
10 Big Myths About Copyright Explained Links to an external site.by Brad Templeton
Copyright Crash Course Links to an external site. from the University of Texas Libraries

It should be noted that Congress determined that software and the Internet were not covered by the original copyright act. Consequently, Congress passed the Digital Millennium Copyright Act (DMCA) in 1988 Links to an external site. to cover production and dissemination of technology, devices, or services and heightened penalties for copyright infringement on the Internet.

Copyright Wordle