The "Fair Use" Doctrine

Baird Whelan -

Is "Fair Use" simply guidelines or is it the "The Law"?

 

 “This document may contain copyrighted material whose use has not been specifically authorized by the copyright owner. The course author is making this content available in our efforts to advance the understanding of copyright law issues. We believe that this constitutes a 'fair use' of the copyrighted material as provided for in section 107 and Section 110 of title 17(2) "The TEACH Act" of the U.S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner.”

Does that get me "off the hook" with the producers of copyrighted content I want to include in my course? I think so .... but, let's take a closer look at Fair Use. 

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

The TEACH Act  is the result of lengthy conversations and negotiations between representatives of the various stakeholders in the copyright arena.  The result is a compromise that no group is entirely happy with and, for many, it is too much trouble to implement. Remember, however, that "TEACH" is really just a shorthand way of referring to the current Section 110(2) of the Copyright Act.  Just as you may choose not to rely on fair use, you can also choose not to rely on TEACH.  A summary of the TEACH Act is provided in the "Digging Deeper" folder in the Module and the J. Murrey Atkins Library at UNC Charlotte has a good webpage dedicated to the TEACH Act. 

Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages. The only guidance for fair use is provided by a set of factors outlined in copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective.

For this reason, the fair use road map can be tricky to navigate.

Here are the "Four Factors" that judges will consider:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken,
  • and the effect of the use upon the potential market

How can you know if what you are using is protected under this doctrine? This is a link to the American Library Associations "Fair Use Evaluator" which allows you to actually evaluate the degree to which you are infringing on the copyrights of another. Follow this link and scroll through the Evaluator to see what it can do for you. BETTER YET ... find something that you might want to use in a course you are teaching and have it evaluated! 

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