Sec. 107. - Limitations on exclusive rights:
"...the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any
other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright."
What factors should the creator of a new work,
that borrows material from a copyrighted work, look at in
order to determine if the use is fair?
1. First of all,
what is the purpose of your use of the copyrighted work?
Your analysis should include examining whether
you plan to use the material in a commercial or noncommercial
manner. Is your intention to make a profit or is it purely
a nonprofit educational use?
2. What is the nature
of the copyrighted material?
Is your use fact-based or created imaginatively?
Is the work published or non-published? If the work is factual,
then the work is not copyrightable (ex. maps). Ideas can not
be copyrighted either, only expression.
3. How much of the
original work do you plan to use in relation to the complete
Are you going to use a small portion of
the work or are you planning on using most if not all of it?
If you are taken to court over a copyright issue, the courts
are more likely to weigh this factor in your favor. If you
use a small portion, you should be ok. How
much is a small portion?
4. What is the
effect of the use on the marketability and value of the original
Is it possible to obtain permission from
the copyright holder? For example, is the copyright holder
recognizable and determinable? Will your use negatively effect
the sales of the original copyrighted work? Will your new
work harm the market for the original works? Will your new
work impair the market for derivative works? Is there a market
for permission? Will your use of the copyrighted work actually
increase sales of the original?
In 1976, the Copyright Act was created and
included what is known as the "common law doctrine of fair
use." At that time, educational associations and commercial
publishers also created a set of guidelines on photocopying.
These rules stipulate a minimum level of copying which qualify
under "fair use." This created a so-called "safe harbor" for
photocopying. However, there have been notable exceptions
of this from copyright holders who refuse to acknowledge these
guidelines. It is important to note that the actual guidelines
do not provide protection, only statutes such as the Copyright
Act of 1976 deliver protection for fair use. The courts look
at guidelines as a reference and not as a rule.
1. Faculty members are allowed to make single
copies for instruction and research. This includes:
a. a chapter from a book;
b. an article from a journal, periodical, or newspaper;
c. a short story, essay, or poem;
d. a diagram or picture in any of those works.
2. Faculty members can also make multiple copies for
single distribution in class to students. This is true if
the faculty creates:
a. only one copy for each student; and
b. includes the notice of copyright; and
c. uses only limited amounts of poetry, prose, and illustrations;
d. there is no charge to the student beyond the cost of the
These rights granted to faculty members can be increased if
the copying has little to no consequential ramifications upon
the marketability of the original copyrighted work and/or
there is little or no time to secure permission from the copyright
holder. Permissions should be obtained from copyright
holders if the use is repeated multiple times, if the photocopying
is for commercial use, or if the use is for course packs,
or consumable works within the classroom (workbooks, exercises,
tests, etc.). Unpublished works are also copyrighted by law
from the time they are recorded (pen, cd, typewriter, etc.)
until they become published. Educational professionals should
remember that not everything is copyrighted and that receiving
permission is not as difficult as it may sound. If confused
you should ask university counsel whether your desired use
qualifies under fair use.
For more information on using copyrighted materials
in a digital context, go to Copyright
in an Electronic Environment. This site has very clear
and concise guidelines and is hosted by the North Carolina
State Board of Education. These rules were created from the
Guidelines from Consortium of College & University Media Centers.