Lesson 7: Fair Use and Public Domain Understanding Fair Use

Among the rights granted a copyright owner is the right to reproduce the work and the right to authorize others to reproduce the work. To create a balance between the rights of the copyright owner and the need for the public to have free access to creative works, the law places limitations on a copyright holder’s exclusive right to prevent reproduction of his or her work. This is called the fair use doctrine and is used as a defense when someone is sued for copyright infringement. This principle was developed over time through courts deciding what is and what is not considered a fair and valid use of someone’s copyright-protected work.

Contrary to popular belief, not every use is a fair use that falls within this exception, and fair use exceptions are not easy to determine because no specific number of words, lines, or notes may safely be used without permission from the copyright holder. When making a decision, the courts look to four factors:

 

1. purpose and character of the use, including whether it is for commercial or for nonprofit educational purposes

2. nature of the copyrighted work

3. how much of the work is being used and how substantial the portion used is in relationship to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work—does the intended use affect the copyright owner’s ability to make money?

 

Despite these specific guidelines, the public is still unclear as to how much of someone’s copyright-protected work is permissible to use, because various courts interpret the rules differently.

Applying Fair Use Doctrine

Let’s look at how the fair use doctrine can be applied.

A copyright holder has the right to make copies or reproduce the work and the right to prevent or limit that same use by others. Therefore, if a person duplicates an article or one page of a magazine or copyright-protected book, that’s considered infringement. The fair use doctrine steps in to give the infringer a break—if possible—by saying if you copy one page of an article for your personal use, it’s acceptable or permitted. However, if you copy the entire book, even for your personal use or make copies for your group, that would not be a fair use.

Let’s look at an example of how the doctrine might be used to determine if someone’s use of copyright-protected material is a fair or permitted use. Suppose you are a trainer who’s been hired to do an off-site retreat or an internal training presentation. There are 50 participants in your session, and you duplicate handouts for each. Within each handout packet, as additional resource material, you include several articles you found in popular magazines. Is this a permitted use? Does the fair use doctrine apply to the duplication of 50 handouts, which include articles from magazines? Let’s take a look.

1. Purpose and character: The courts favor nonprofit educational uses over commercial uses; however, even when a use takes place in an educational or nonprofit setting, if you make money, the courts are not likely to see your use as a fair use. The courts also look to uses that literally transform the work to something new and different, not merely a reproduction of someone’s copyright-protected work. In the above scenario, you are hired to facilitate a program for pay—a commercial purpose. There is no evidence to suggest that you transformed the content of the handouts into new and different material. Therefore, at first blush and without more information, it’s not likely this use would be found to pass the purpose and character test.

2. Nature of the copyrighted work: Many courts seem to favor the application of the fair use doctrine when the use in issue is a nonfiction copyright-protected work, rather than a work of fiction. Therefore it’s less likely you can take a piece of fiction and claim fair use. The courts also give greater consideration if the work is a printed work instead of a commercial, audiovisual work, or if it’s an educational text rather than a consumable workbook. Whether a use is for research, scholarship, news reporting, comment on someone’s copyright-protected work, or a parody will also play a part in whether it passes the nature test. In the above situation, the articles were copied and don’t appear to be used for research, news reporting, commentary, or parody, plus they are printed material, thus their inclusion into your handout packet probably will not pass the nature test of the fair use doctrine.

3. Amount used or substantial portion: It’s impossible to know exactly how much of someone’s copyright-protected work qualifies as a fair use. However, there are two things to take into account: (1) the amount used in relation to the length of the entire document and (2) whether the amount used goes to the heart or essence of the work. A few courts have determined that a journal article by itself is an entire work and that any copying of an entire work usually weighs against fair use. The use of photos and pictures create additional problems, because the user almost always wants the full image, in which case it’s not likely the entire photo will be a permitted use. Sometimes, the use of a miniature or thumbnail version, or a low-resolution version— if used for education or research purposes—could be sufficient to render use a fair use. A user can also copy a portion of a copyright-protected work, such as a photo, or the articles in question in the example, and have that use not meet the qualified amount test because it goes to the heart of the work.

4. Market impact: What’s the effect of the use upon the potential market for or the value of the copyrighted work? Does the intended use affect the copyright owner’s ability to make money? These are the questions asked and answered when this fourth factor is applied. Effect on the market is often considered the most important of the four tests, because if a use interferes with the copyright holder’s ability to be compensated for the work, it’s not likely your use will be considered a fair use. Infrequent use of quotations and photocopies may not have an unfavorable effect on the market, but duplicating software, videotapes, books, multimedia kits, and large amounts of documents can prove harmful to the copyright holder’s bottom line. In the above scenario, making copies of articles for every attendee equals a lot of copies. This could be perceived as affecting the copyright holder’s ability to make a sale.