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Fair Use (American)


The Doctrine of Fair Use:


The right to use copyrighted materials freely without payment or permission for purposes such as "criticism, comment, news reporting, teaching, scholarship and research."
-Section 107, Copyright Act of 1976

The Copyright Act of 1976, Section 107 codified four factors of analysis for determination of "fair use" for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research that are not an infringement of copyright. Those factors are:
1. The purpose and character of the use, including whether such 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 copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

"Each educator or student is responsible for making a fair use decision for themselves. It's not appropriate to rely on lawyers or librarians to do our thinking for us. Kenneth Crews of the Copyright Office at Columbia University says that each fair use determination is about an individual's comfort zone. As Carrie Russell of the American Library Association points out in her book, Complete Copyright, "Sometimes a situation clearly is fair use. More often than not, however, your assessment may seem a bit ambiguous. This is the nature of fair use.... As you practice fair use more often, your confidence will grow. Remember to be consistent and think critically." (Hobbes, n.d.)

"The trick here is to not rely on charts or lists which provide neither a "safe harbor" nor an illusion of "certainty," but to think about the fundamental question that underlies the fair use of copyrighted works: transformativeness. Did your use of the copyrighted work re-purpose or add value? If you have good reasons behind you, you meet the "reasonableness standard" that protects educators and librarians who "reasonably believed and had reasonable grounds for believing" that his or her use was a fair use." (Hobbes, n.d.)

The Educational use guidelines can sometimes conflict or create confusion when considering Fair Use. The Code of Best Practices in Fair Use was developed by the Media Education Lab at Temple University and it is meant to offer guidance, not guidelines. Many educators are unaware that rigid guidelines (such as the 'ten percent rule' or the '30 second rule') are the results of negotiated agreements and are not, in fact, law. The purpose of the Code of Best Practices is:

  • To educate educators themselves about how fair use applies to their work
  • To persuade gatekeepers including school leaders, librarians, and publishers to accept well-founded assertions of fair use
  • To promote revisions to school policies regarding the use of copyrighted materials that are used in education
  • To discourage copyright owners from threatening or bringing lawsuits.
  • In the unlikely event that such suits were brought, to provide the defendant with a basis on which to show that his or her uses were both objectively reasonable and undertaken in good faith.

The Five Principles of the Code of Best Practices in Fair Use for Media Literacy are:
Teachers can:

1. make copies of newspaper articles, TV shows, and other copyrighted works and use them and keep them for educational use
2. create curriculum materials and scholarship with copyrighted materials embedded
3. share, sell and distribute curriculum materials with copyrighted materials embedded

Learners can:
4. use copyrighted works in creating new material
5. distribute their works digitally if they meet the transformativeness standard

Remember, when judging if you are applying the Fair Use doctrine, keep in mind the nature of the use, the purpose of the use, the amount of the use, and the effect on potential market. Think about the context or situation in which the copyrighted material is being used in the new work. Be sure to think about whether or not your use of copyrighted materials is transformative in nature.

View the Code of Best Practices



It is important to remember that transformative use is Fair Use!


When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in a new context”
- Joyce Valenza, School Library Journal

To help end any copyright confusion:

  • Watch the following slide show "Finally the end to copyright confusion has arrived"
http://www.slideshare.net/reneehobbs/finally-the-end-to-copyright-confusion-has-arrived-presentation


It has fantastic resources for teaching about Copyright and Fair Use, including lesson plans, teaching materials and videos for topics such as:
  • understanding copyright
  • the cost of copyright confusion
  • defining and applying Fair Use
  • five principles of the Code of Best Practice
  • advocacy

"Remember, the intent of Copyright Law and Fair Use Guidelines is not to stifle creativity, but rather to encourage it."

- Linda Bartrom


Fair Dealing (Canada)

The fair dealing clauses of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair. It is important to note that unlike fair use in the United States, which recognizes that parody can be fair, fair dealing in Canada has not definitely been found to contain exceptions for parody( Wikipedia).
In 2004 while considering fair dealing, the Court makes the following general observation:

"It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively." (Wikipedia)

Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use.
It then establishes six principal criteria for evaluating fair dealing.
  1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights." In particular, the Court gave a "a large and liberal interpretation" to the notion of research, stating that "lawyers carrying on the business of law for profit are conducting research".
  2. The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after being used? What is the general practice in the industry?
  3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing as there would not be copyright infringement at all. In some cases even quoting the entire work may be fair dealing. The amount of the work taken must be fair in light of the purpose of the dealing.
  4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Was the dealing "reasonably necessary to achieve the ultimate purpose"?
  5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
  6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair."
Though the Supreme Court outlined these six criteria, it noted that in some contexts, factors other than those listed may be relevant in determining whether a particular dealing is fair.

References

Bartrom, Linda. (Sept/Oct 2009). Fair Use Guidelines. Tech Trends. 53 (5), 14. Retrieved from: http://proquest.umi.com.login.ezproxy.library.ualberta.ca/pqdweb?index=2&did=1893204371&SrchMode=1&sid=2&Fmt=3&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1267424041&clientId=12301

Hobbes, Renee. (n.d.) Finally- the End of Copyright Confusion has Arrived Wiki. Retrieved from: http://copyrightconfusion.wikispaces.com/

Valenza, Joyce. (April 1, 2008). Fair Use and Transformativeness: It may shake your world. Neverendingsearch Blog. Retrieved from: http://www.schoollibraryjournal.com/blog/1340000334/post/1420024142.html?q=transformative+use


Wikipedia.(n.d.) Fair Dealing. Retrieved from: http://en.wikipedia.org/wiki/Fair_dealing