Faculty and Staff: Copyright and Fair Use

Copyright can be confusing and there is no shortage of information when and how it applies. We can't make you copyright experts, but we can give you some copyright basics, links to further information, and some tools to help you make a reasoned analysis of fair use. 

WHAT IS COPYRIGHT?

Copyright is a form of protection provided by U.S. law to creators of original works of authorship. This protection incentivizes creation and enables a limited period for financial compensation. An original work of authorship is copyrighted the moment it is fixed in a tangible form of expression—be it paper or digital, published or unpublished.

The following types of works are protected by copyright:

1. literary works
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works

A copyright owner has the exclusive right to do and to authorize others to do the following:

• reproduce the work in copies or phonorecords
• prepare derivative works based upon the work
• distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. In the case of sound recordings by means of a digital audio transmission
• display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work

The current term of copyright for an original work of authorship is the life of the author plus 70 years. 

(U.S. Copyright Office. Copyright Basics  http://www.copyright.gov/circs/circ01.pdf)

You've probably heard the term "Fair Use" used frequently in discussions about using copyrighted materials in the educational setting. But what is fair use and how do you determine if you are acting within the boundaries of it?

Fair Use is a limitation on a copyright holder's exclusive rights to reproduce, distribute, make derivative works, and perform or display their work. It is an interpretation of one's use of copyrighted material wherein the benefits of use outweigh the exclusive rights of the copyright holder.

Section 107 of the U.S. Copyright Act (Fair Use) provides four parameters, or factors, for interpreting the use of copyrighted material without the permission of the copyright holder as legal:

1. The purpose and character of the use, including whether the 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 work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

These factors are considered together in determining if fair use may be asserted when using copyrighted material. An educational purpose alone is not necessarily satisfactory for fair use, nor does a commercial purpose necessarily make it unfair. 

Even when you use the "four factors" as a guide, the distinction between fair use and infringing upon copyright is not always clear. Only a court can ultimately determine if a use is fair, and this only happens if a case is litigated. In other words, the assertion of fair use is a defense, not a right.

However, the copyright code, legal precedent, and various tools that assist in fair use evaluation provide valuable guidance for you, the educator in the classroom.