• Understanding fair use

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    • What is Fair Use?


    Fair use is the non-competitive right to use copyrighted material without giving the author the right to compensation or to take legal action for infringement of copyright. The exclusive rights of the copyright owner are not unlimited in scope. The current copyright law (Title 17, Section 107, U.S. Code) gives the owner of a copyright the exclusive right to reproduce and distribute a work, with very few exceptions. The most important exception to this exclusive right is usually referred to as "the fair use exception."

    There's no one right answer as to what constitutes a "fair use" of a copyrighted work. The answer varies from situation to situation. The criteria as designated in the law for using copyrighted materials under the fair use exception are governed by four factors.

    • Four Fair Use Factors


    Deciding whether the use of a work is fair is not a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors.

    • Factor 1: Purpose and character


    The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Favoring factors include:

    Nonprofit Educational Institute
    Teaching
    Criticism and comment
    Research
    News reporting
    Parody

    • Factor 2: Nature of copyrighted work

    The nature of the copyrighted work. Favoring factors include:

    Fact or nonfiction based
    Dramatic or non-dramatic
    Published work
    Out of print work

    • Factor 3: Amount and substantiality


    The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Favoring factors include:

    Quantitative: a small portion
    Qualitative: not the "heart of the work"

    • Factor 4: Effect upon market or potential market


    The effect upon the potential market for or value of the copyrighted work. Favoring factors include:

    One or few copies made
    User owns lawfully acquired or purchased copy of original work
    No significant effect on the potential market or market for the copyrighted work
    No similar product marketed
    Licensing or permission method is absent

    • Fair use Do's


    Do get permission when you intend to use another's work for commercial or non educational purposes. Sample permission letter.
    Do remember there is a wider scope for using factual and representational works; less scope for using unreal and imaginative works, little scope for using unpublished works, and no magical percentage or number that is always, under all circumstances, OK.

    • Fair use Don'ts


    Don't steal manuscripts or use works you know are stolen or infringing.
    Don't breach agreements.
    Don't lie or deceive.

    • Fair use examples

    Use on the left tips the scale in favor or fair use. Use on the right tips the scale to oppose fair use (obtaining permission) 
                                    


    Favoring Fair Use                                                                                    Opposing Fair Use 
    Factor 1: Instructor using material in a nonprofit educational institution.      Factor 3: Using a large portion or entire work. 
                                    
    Favoring Fair Use                                                                                       Opposing Fair Use 
    Factor 2: Instructor using published material.                                          Factor 4: Making other’s work accessible on the Web. 

    • Quick Review

    One must consider at least two fair use factors to be in compliance with the law. True or False: Answer
    It's copyrighted, so it can't be fair use. True or False: Answer
    Acknowledgement of the source makes a use fair. True or False: Answer
    If a profit is made from the use of another's work is this favoring or opposing fair use? Answer
    Unpublished works are exempt from the fair use guidelines. True or False: Answer

    • Legal Resources and Useful Forms


    Copyright Basics
    Copyright Internet Resources
    The Copyright Website
    Computer Professionals for Social Responsibility
    Fair Use Guidelines for Educational Multimedia
    Sample Permission Letter to Reproduce Copyrighted Material
    This article should not be deemed as legal advice. Always consult with your institution's legal counsel to make sure you are within fair use parameters and are adhering to your institution's own intellectual property guidelines. 

    • Author

    Jean M. Dugo, EDTEC Graduate Student

    Dugo, J. (2004). Understanding fair use. In B. Hoffman (Ed.), Encyclopedia of Educational Technology. Retrieved July 15, 2010

    • 标签:
    • copyrighted
    • educational
    • works
    • answer
    • favoring
    • use
    • work
    • understanding
    • permission
    • fair
    • right
    • factor
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