Issue link: http://educator.cta.org/i/358877
The Fair Use Doctrine is one of the most important limitations on the exclusive rights of the copyright holder. It allows that copyright can be infringed because strict application of the law impedes the production and dissemination of works to the public. The Fair Use Doctrine was added as Section 107 of the Copyright Act of 1976 and was based on a history of judicial decisions that recognized that unauthorized infringements of copyright were "fair uses." U.S. Code — Sec. 107. Limitations on exclusive rights: Fair use The fair use of a copyrighted work, including such use by re- production in copies or phonorecords, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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 edu- cational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in rela- tion 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. The fact that a work is unpublished shall not itself bar a find- ing of fair use if such finding is made upon consideration of all the above factors. Source: American Library Association. Reprinted with permission. WHAT IS FAIR USE? the purpose is the betterment of society by advancing learning. Yes, authors should be paid, but payment is not the purpose. Think of it as a means to an end. By distributing their work to the public (by sale, rental or some other mechanism), authors and other creators provide access to creative works which benefit the public. Of utmost impor- tance to the founders of our country was the distribution of information to the public so citizens would learn, understand and contrib- ute to the democratic nation. Can an educator show an entire film in the classroom? Yes, as long as the copy being used is lawfully obtained. Congress created this exception in the law for educators because, again, they were trying to make the spread of information as broad as possible. So, uses that advance learning are favored. Uses that do not advance learning — such as showing a feature film as a reward — are not favored. Generally, those uses require prior permission and a fee, even when there is no profit motive. Can students use music in their presentations? Absolutely! Students can use any music in their student presentations even if it is protected by copyright, but keep it in the classroom! Permission may be required if the presentation occurs elsewhere, such as on YouTube. Including materials that may be protected by copyright is expected in the educational setting. Of course, including other protected works in a presenta- tion to the extent that the student does not provide any of her own work is a problem. Think balance when con- sidering copyright. What about "fair use guidelines" that dictate only a portion of a work can be copied? The guidelines are arbitrary rules that do not have the force and effect of law. Sometimes, when necessary, using a larger portion of the work can be fair use. The opposite also is true. Small portions might rise to infringement depending on the situation. Making copyright decisions should be based on fair use and the situation at hand. What is the difference between copyright infringement and plagiarism? Plagiarism is taking credit for another person's work. Passing off a work assignment by copying another work is plagiarism. Copyright infringement is breaking the law by using protected works in ways that are not fair. Avoid- ing a sale of a work by making copies is a clear example of this. Sometimes plagiarism occurs at the same time as copyright infringement but sometimes not. For instance, if a student copies a stage script and claims ownership, we have plagiarism and infringement. When a student claims a work as their own, but the work is not protected by copyright, there is only plagiarism. In any case, all works used in a student assignment or presentation must be cited. Know & Tell 17 V O L U M E 1 9 I S S U E 1