October 2005 — The Final Word

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Determining ‘Fair Use’ Practices

by Jeremiah Woolsey

Determining ‘Fair Use’ Practices
Use common sense and a few basic guidelines to protect yourself and your work.

There is no all-encompassing test to determine what constitutes “fair use”; therefore, every case should be treated uniquely as particular circumstances and interpretations of the law can be quite diverse.While guidelines are not meant to be a substitute for legal counsel, Section 107 of the US Copyright Act d'es provide some help by outlining the four principle factors governing appropriate use of educational multimedia as follows:

Purpose and character of use. This lays out whether the use is of a commercial nature or for nonprofit educational purposes. Court rulings have generally given more leeway to uses that are for academic purposes, especially if revenues are not part of the instructional artifact. Generally,if content is made freely available for use, one cannot, in turn, use it in an educational product that is sold. Incorporating the material en masse, or extracting and inserting portions, is also given more scrutiny than linking to a source’s URL.

Nature of the copyrighted work. An artistic or purely creative work, be it literary, graphical, or musical, is generally offered tighter protection by the courts than work describing existing elements or forces in nature.

Amount used. The question might be asked:What percentage of the copyrighted source work was used, and what percentage of the target work did it comprise? Most guidelines suggest that no more than 10 percent of a work be used,but this is not the only factor that is considered.

Effect of use on a potential market. This factor takes into account the potential market for, or value of, the copyrighted work. If one’s use of the material would reduce the possibility for sales of the source material, then that would be deemed an issue worthy of consideration. For instance, when a copy center photocopies a complete textbook and resells it, that denies a potential sale and is deemed a violation.When course packs are legitimately produced, however, intellectual property rights and proper remuneration are taken into account.

Fair Use in Practice
Fortunately, there are simple,commonsense methods to avoid serious problems. Let’s start with the obvious: If you are copying portions of a colleague’s presentation, giving acknowledgement is at least a professional courtesy and usually satisfies the author. Much of the work done in creating educational media is synthesis— we quote, we paraphrase, and we summarize. So, we should cite our sources just as we ask our students to do in avoiding plagiarism.

If you’re concerned about inappropriate use of your own material, a simple solution is to put a copyright notice on your work. You can specify the year and include that reproduction is by permission only. In Microsoft Word, you can add a copyright mark by pulling down the Insert menu and selecting Symbol; the copyright symbol is part of that character set.