In our society, copyright law is ubiquitous, unavoidable and applicable whether you know anything about it or not.  In other words, ignore it at your own peril.

Copyright Law: The Short Version

• Legal Copyright Protection-
  • Applies to works in every media format
  • Arises automatically (no action required) as soon as
    • An original work (writing, photo, song, movie, etc.)
    • Fixed in a tangible medium of expression
    • Applies even if there is no copyright notice for works
    • Created after 1989; no registration or publication required.
       
• Rights of the Copyright Holder (exclusive to the holder)
  • To reproduce the work (copy)
  • To make derivative works (modify or base your work on it)
  • To distribute the work
  • To publicly perform the work
  •  To publicly display the work
  •  To publicly perform a sound recording by digital transmission
     
• How long does a copyright last?
  • Works created after 1978 – term is the life of the author + 70 years
    • If such works cannot be tied to lives – term is 120 years from date of creation or 100 years from the date of publication, whichever shorter.
  • Works created before 1978, please check these charts:
    • Copyright Term and the Public Domain inthe United States
    • WHEN WORKSPASS INTO THE PUBLIC DOMAIN
    • One rule of thumb: Works published in the U.S. before 1923 are in the public domain
    • Works created by federal government employees with the scope of their employment are not copyrighted.
    • Works that failed to comply with required formalities, when required or whose copyright has expired are also in the public domain.

Fair Use: What You Need To Know

Fair Use can be appropriately characterized as the most critical limitation on the copyright holder's monopoly control of their work. It allows certain uses of (generally) portions of a copyrighted work without the need for prior permission from the work's holder. The inherent flexibility of fair use provides the necessary play in the joints between creators and those who would use portions of their works, thus enabling copyright law to achieve its Constitutional purpose of promoting the progress of science and the useful arts. Given that faculty and students are frequent users of 3rd party copyrighted materials in the classes, the responsible exercise of fair use is particularly crucial to each and every class taught in America. What could be more mission critical?

The doctrine of fair use is codified in Section 107 of the Copyright Act, where favored uses, such as education, commentary, news reporting , and criticism are set forth in the preamble, followed by four factors to be considered when determining whether a particular use is a fair use. These factors speak to general characteristics of the work used, the purpose of the use, the amount used and what potential effect the proposed use might have on the market for the original work. Rigid, bright line rules do not exist in the statute. To assume that one "answer" exists for the infinite variety of situations would destroy the very flexibility fair use is intended to address.

What Do I Need To Know?

As you read through this short overview of fair use, or some other resource on the web, it is easy to become overwhelmed. Don't go there. This is not law school and a few paragraphs are not going to make you a fair use expert. Before reviewing the four fair use factors, keep in mind:

• Not all four factors need to favor fair use (should be at least half)
• Reasonable minds can differ over what is a fair use
• All that is expected of you, as an employee of a nonprofit educational institution doing your job, is that you take the time to do a reasonable/reasoned consideration of each factor in the context of your situation and make a good-faith, objective decision about each factor.

Fair Use Considerations Worksheet

Four Fair Use Factors

1. The PURPOSE AND CHARACTER of the use, including whether the use is of a commercal nature or is for nonprofit educational purposes.

• The purpose generally weighs in favor of fair use for our nonprofit educational uses here at the university.  But education use alone does not automatically result in a finding of fair use because all factors must be considered.
   
• The character prong of Factor One is more likely to weigh in favor of fair use if your use is transformative rather than verbatim copying.  Recent court decisions have emphasized that when a use is substantially transformative, the other factors are less significant.  The test for a transformative use is "does the use merely supercede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)

2. The NATURE of the copyrighted work

• Generally weighs in favor of fair use if the nature of the work used is factual (scholarly, technical, scientific) rather than works involving more creative expression, such as plays, poems, fictional works, photographs, paintings and such.

3. The AMOUNT AND SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLE.

• Amount is a sliding scale factor - the larger the amount of the work you use, the less likely it will be considered a fair use.  As discussed above, there are no bright line rules or guidelines concerning amounts allowed, in order to preserve the fact-dependent, flexible natre of the fair use doctrine.
   
• Substantiality here considers whether the portion used amounts to the "hear of the matter" or the key purpose of the work. Fortunately, selection of a particular portion of a book for reserve reading does not automatically confer "heart of the matter" status on the amount assigned.  There are many other reasons why a particular portion is chosen by the professor for the class.

4. The EFFECT of the use UPON THE POTENTIAL MARKET for or value of the copyrighted work.

• If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use.  Lost permission fees do not amount to a negative impact on the market for the work.  That is, the purpose of the fair use analysis is to decide whether or not a permission fee is required; just because there is a permissions market should not determine whether a fee is necessary in the first place.    

These are the four fair use factors as set forth in the statute. Remember you can always consult the Fair Use Considerations Worksheet for guidance.