Copyright Issues in Teaching with Technology

Fair Use
The terminology of the law is quite explicit. Congress stipulated that “the fair use of a copyrighted work....for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (Section 107). The law does not say, “the use of a copyrighted work....is not an infringement...” It specifies, “the fair use of a copyrighted work....” (emphasis ours). This is an important distinction, because the myth seems to persist in academe that if a use is for educational purposes, it is legal under fair use, but that is not the case. Only a fair use is legal, and fair use cannot be applied until four essential factors have been considered.

From our perspective as users of protected works, we would want the four factors to be easily applicable and clear-cut, so that decision-making could be relatively simple and precise. Unfortunately (from our perspective), the four criteria are excruciatingly ambiguous and complex. This was intentional on the part of the law’s authors, because a virtually infinite number of possible fair use scenarios exist, and Congress wished to provide a flexible structure for assessment that could be applied to all cases without the need for constant revisions to the law. Thus, each fair use situation must be individually judged on its own merits against the four factors.

Remember that the four factors help you judge only whether a copyrighted work can be used without permission. Even if the factors weigh against fair use, you still may be able to use the materials if the owner grants approval. Permissions will be discussed below.

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Educational or nonprofit uses of protected materials tend to weigh in favor of fair use. Reproduction for the purposes of criticism, commentary, and news reporting, even if for commercial purposes, also are more likely to be considered fair use. “Transformative” works that use the old material in new ways are more likely to be favored than cases of simple duplication of an original.

• The nature of the copyrighted work.

Works of nonfiction presenting factual material are more likely to be considered fair use than fictional and artistic works based on creative expression. Published materials are generally favored more than unpublished works. Audiovisual materials are more questionable than printed works, and reproduction of materials designed to be consumable, such as workbooks and preprinted answer sheets, is rarely considered fair use.

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This factor has both quantitative and qualitative aspects. In many cases, a reproduction involves a journal article, photograph, illustration, cartoon, or other short publication in which the entire work is desired. The fact that the work may appear with other materials and constitute a small percentage of the total content of the publication is irrelevant. Courts are more likely to favor a use that took no more of the published original than was necessary to meet the user’s purposes. Care must also be taken to ensure that the portion taken, even if a small amount of the entire work, does not contain the essence or heart of the original.

• The effect of the use upon the potential market for or value of the copyrighted work.

While this factor is often considered the most important of the four, it may also be the most misunderstood. A professor may feel that a reproduction is justifiable because as an isolated event the financial harm to the copyright owner is minimal. However, the courts consider effect in the context of the potential impact if the professor’s act were a widespread practice. Potential harm to derivative works may also be taken into consideration. Reproductions from scholarly publications are particularly questionable, because in many cases higher education is the primary market for those products, and financial loss is easier to demonstrate.

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