Information Technology Reference
In-Depth Information
The right given to a copyright owner to reproduce a work is a limited right. Under some
circumstances, called
fair use
, it is legal to reproduce a copyrighted work without the
permission of the copyright holder. Examples of fair use include citing short excerpts
from copyrighted works for the purpose of teaching, scholarship, research, criticism,
commentary, and news reporting.
The United States Copyright Act does not precisely list the kinds of copying that are
fair use. Instead, what is considered to be fair use has been determined by the judicial
system. The courts have relied upon Section 107 of the Copyright Act, which lists four
factors that need to be considered [35]:
1.
What is the purpose and character of the use?
An educational use is more likely to be permissible than a commercial use.
2.
What is the nature of the work being copied?
Use of nonfiction is more likely to be permissible than use of fiction. Published
works are preferred over unpublished works.
3.
How much of the copyrighted work is being used?
Brief excerpts are more likely to be permissible than entire chapters.
4.
How will this use affect the market for the copyrighted work?
Use of out-of-print material is more likely to be permissible than use of a readily
available work. A spontaneously chosen selection is better than an assigned reading
in the course syllabus.
In the previous section on copyright, we discussed the case against Kinko's. A num-
ber of factors led the judge to conclude that the reproductions made by Kinko's Professor
Publishing business were not fair use. Kinko's is a commercial enterprise; it started the
Professor Publishing business to make a profit. It copied significant portions of books
to create the course reading packets. Some of the topics were still in print, hence Kinko's
negatively affected the market for the copyrighted work. Finally, the readings were not
spontaneously chosen. Kinko's had time to contact publishers and gain permission to
reproduce the materials, perhaps by paying a licensing fee.
Let's consider two scenarios in which copyrighted works are duplicated and deter-
mine if they made fair use of the material. These scenarios are closely modeled after
situations presented on the Web site of CETUS, the Consortium for Educational Tech-
nology in University Systems (
www.cetus.org)
.
FAIR USE EXAMPLE #1
A professor puts a few journal articles on reserve in the library and makes them
assigned reading for the class. Some students in the class complain that they
cannot get access to the articles because other students always seem to have them
checked out. The professor scans them and posts them on his Web site. The
professor gives the students in the class the password they need to access the
articles.
