Is Fair Use a License to Steal?
Part 2 of a Series on Copyright and Fair Use
Many educators interpret fair use as freedom to use copyrighted
materials as long as their use is restricted to instructional purposes.
Are they correct in that belief? Not exactly! Learn how the law really
works. Included: Fair use guidelines for educators!
Copyrights and Copying Wrongs
According to the Copyright Act of 1976, "In determining
whether the use made of a work in any particular case is a
fair use, the factors to be considered shall include
* the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit
* the nature of the copyrighted work.
* the amount and substantiality of the portion used
in relation to the copyrighted work as a whole.
* the effect of the use upon the potential market
for or value of the copyrighted work.
first part in the Education World series on copyright and fair use, set
out a good rule of thumb for using copyrighted material -- when in doubt,
There are, as always, exceptions to the rule. For example, if your use
of the materials falls under the fair use doctrine, you don't have to
get permission to use copyrighted materials. Be careful, though. The fair
use doctrine is not a license to steal!
The fair use doctrine was created to allow the use of copyrighted works
for criticism and commentary, parody, news reporting, research and scholarship,
and classroom instruction.
Many educators, however, interpret the fair use doctrine as freedom
to use any copyrighted materials as long as their use is restricted to
"They are not correct in that belief," said former copyright attorney
"The fair use doctrine, established in a long line of court cases, provides
a limited basis by which people can use a copyrighted work without getting
permission from the creator," Willard told Education World. "The essence
of the fair use doctrine is that a person is not using the work in such
a manner that is, or has the potential of, diverting income from the creator."
IS IT FAIR USE?
"To determine whether a use is fair requires consideration of four factors,"
Willard added. "The first factor is the purpose of the copying, and copying
to support an educational use certainly meets this standard. There are
three other factors, though: how much has been copied, what kind of material
has been copied, and the potential financial loss to the creator. So,
although your heart and intentions may be pure, the other factors must
still be considered."
Those factors, codified in Section
107 of the Copyright Act, are
- the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes.
- the nature of the copyrighted work.
- the amount and substantiality of the portion used in relation to
the copyrighted work as a whole.
- the effect of the use upon the potential market for or value of the
When evaluating a particular use of copyrighted materials in relation
to those four factors, you should ask yourself the following questions
- the purpose and character of the use:
- Does the new work transform the original work or
offer something beyond the original? Copyrighted works that are
altered significantly are more likely to be considered fair use.
- Is the use for nonprofit or educational purposes?
Copyrighted works used for nonprofit or educational purposes are
more likely to be considered fair use.
- the nature of the copyrighted work:
- Is the copyrighted work published or unpublished?
Published works are more likely to be considered fair use.
- Is the original work out of print? Out of print works
are more likely to be considered fair use.
- Is the copyrighted work factual or creative? Factual
works are more likely to be considered fair use.
- the amount and substantiality of the portion used in relation to the
copyrighted work as a whole:
- Is the amount of the original work used reasonable?
The smaller the percentage of the work used, the more likely it
is to qualify as fair use.
- Is the section of the original work used the most
important part of the work? The less significant the portion of
the work used, the more likely it is to be considered fair use.
- the effect of the use upon the potential market for or value of the
- Does the new work appeal to the same audience as
the original work? Copyrighted works that are used for another purpose
or designed to appeal to a different audience are more likely to
be considered fair use.
GUIDELINES FOR EDUCATORS
"Over the years, librarians, educators, and publishers have developed
voluntary guidelines to address fair use," Willard told Education World.
"Although these guidelines are not statutory, they are contained in the
legislative history of the Copyright Act."
Those guidelines allow educators, under most circumstances, to copy
- a single chapter from a book
- an excerpt from a work that combines language and illustrations,
such as a children's book, not exceeding two pages or 10 percent of
the work, whichever is less
- a poem of 250 words or less or up to 250 words of a longer poem
- an article, short story, or essay of 2,500 words or less, or excerpts
of up to 1,000 words or 10 percent of a longer work, whichever is less;
- a single chart, graph, diagram, drawing, cartoon, or picture from
a book, periodical, or newspaper.
The guidelines do not allow users to
- make multiple copies of different works as a substitute for the purchase
of books or periodicals
- copy the same works for more than one semester, class, or course
- copy the same work more than nine times in a single semester
- use copyrighted work for commercial purposes
- use copyrighted work without attributing the author.
MUSIC, TV, AND VIDEOTAPES
Educational technology existed, of course, -- in the form of audio and
video -- long before the Internet, software, digital images, and multimedia
productions invaded our classrooms. Guidelines for the use of such "primitive"
technologies were developed.
The guidelines developed in 1976 for the educational use of music include
- Multiple copies of sheet music may be copied in an emergency (for
an imminent performance) to replace purchased copies that are not available,
provided purchased replacement copies are substituted as soon as possible.
- For academic purposes other than performance, multiple copies of
excerpts of works may be made, provided the excerpts don't include more
than 10 percent of the whole work or make up a part of the whole that
would constitute a performable unit, such as a section, a movement,
or an aria. The number of copies may not exceed one copy per student.
- For academic purposes other than performance, a single copy of an
entire performable unit (section, movement, aria, etc.) may be made
if the unit is out of print or available only in a larger work.
- Sheet music that has been purchased may be edited or simplified if
the fundamental character of the work is not distorted and that lyrics
are not altered or added.
- A single copy of a sound recording of a student performance may be
made for evaluation or rehearsal purposes and may be retained by the
educational institution or individual teacher.
- A single copy of a sound recording of copyrighted music may be made
from sound recordings owned by an educational institution or an individual
teacher for the purpose of constructing aural exercises or examinations
and may be retained by the educational institution or individual teacher.
- Copying to create, replace, or substitute for anthologies, compilations,
or collective works; copying works intended to be consumable, such as
workbooks, exercises, or standardized tests; copying for the purpose
of performance (except in an emergency); copying as a substitute for
purchase; and copying without the inclusion of the copyright notice
are not permitted.
In 1981, a congressional subcommittee developed guidelines for off-air
taping of television and radio broadcasts for educational use. Those guidelines
allow educators to tape a radio or television broadcast for instructional
(not entertainment) use if
- the program is recorded simultaneously with the broadcast.
- the program is being broadcast without charge.
- the program is recorded only in response to a specific request.
- the program is recorded (but not necessarily used) in its entirety.
- the program is not altered.
- the tape is retained by the educational institution for no longer
that 45 days after the date of the recording.
- the tape is used only once with each class during the first ten consecutive
school days of the 45-day retention period.
- the tape is used from the tenth to the 45th day of the retention
period for teacher-evaluation purposes only.
In addition, guidelines established in 1976 allow educators who have
bought or rented videocassettes designated for home use only to use those
videocassettes for face-to-face student instruction -- but not for student
IS PRISON IN YOUR FUTURE?
Obviously, copyright law is complicated and easily misinterpreted. Even
those with the best intentions -- and the best lawyers -- are liable to
Website provides some fascinating examples of some big names who made
costly copyright errors.
So what are the chances you'll find yourself in court? Pretty slim --
although they increase dramatically if your use of a work interferes with
the owner's potential income. Most copyright owners don't want to take
teachers or school systems to court. They just want to stop the copyright
infringement. If you make a mistake in good faith and you're asked to
stop using a particular work, do so immediately.
In addition, Nancy Willard offers the following recommendations to help
teachers and school districts avoid problems:
- Use public domain resources whenever possible. Materials created
by the federal government are all in the public domain, and many public
agencies have created educational materials.
- Develop collaborative efforts with other teachers to create and disseminate
public domain materials for educational use.
- Ask permission, and teach students to ask permission, before using
any material about which there is a question.
EDUCATION WORLD'S COPYRIGHT SERIES
Click here to return to the main
page of the Education World copyright series.
Editor's Note: The information contained in this article
is, to the best of our knowledge, correct and up-to-date. Copyright laws
and the circumstances surrounding the use of copyrighted materials can
be difficult to interpret, however, and information in this article should
not be construed as legal advice.
Article by Linda Starr
Copyright © Education World