Is This ‘Fair Use’? Katie Steele TE 868 Summer 2009

Copyright Background The primary purpose for having a copyright law is to encourage the progress of science and the arts. It encourages authors to gain a mini-monopoly over their creative work, also known as copyright. What is copyright? -a legal device that provides the creator ofa work of art, literature, or one who conveys information or ideas, the right tocontrol how his/her work is used.

Importance to Educators Educators are always seeking for information and resources to copy & use in their classroom, but how can we when we need to adhere to the copyright laws? OR How do educators get by using & copying publishers information and worksheets for a lesson?

The Answer Is… -Fair Use- Even though authors are granted rights to exclusively reproduce, adapt, perform, and display their work, the fair use law states that an author is permitted to make limited use of a prior work without asking for permission. This is probably the most significant limitation on a copyright owner's exclusive rights!

History The Fair Use privilege was created by judges in the 19 th century. It was made part of the Copy Right Act in It was created for the use of copyrighted work for the purposes of criticism, comments, news reporting, teaching, and research.

When To Use There is no exact process when determining when to use the Fair Use privilege. When determining Fair Use, consider the ‘golden’ rule: “Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.” Use the following four factors when determining whether use of an item constitutes as Fair Use: 1.the purpose & character of the use 2. the nature of the copyrighted work 3. the amount & substantially of portion used 4. the effect of the use upon the market

Purpose & Character Use An important factor is whether the subsequent work serves as a substitute for the original or ‘adds something new’ with a further purpose or different character or alter the meaning. The more transformative the work is, the less important the other factors weigh against Fair Use. To justify the use as fair, you must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. Examples of Uses: -Criticism -Comments -News reporting -Research -Scholarship -Photocopying for classroom use

Nature of Work The nature of work refers to aspects to relevant aspects of the work, such as whether it is fictional or non-fictional. Less protection is given to factual works (scholarly, scientific, etc.) that to works of fancy (novels, poems, plays, etc.) There are only a few ways to express facts & ideas in a factual work, in which the ideas are bound to merge. Authors are given more leeway in using material from factual works than fancy work due to the nature of the work.

Amount of Portion Used This factor assess the quantity of the original copyrighted work has been used into the new work. In general, the less that is used in relation to the whole the more likely it will be considered Fair Use. Many people believe there is a word limit when copying pieces of work, but it is NOT true; there is no absolute word limit for Fair Use.

Effect on the Market You must consider the harm caused by your copying, but also if similar copying by others will have a substantial impact on the market. The more the work differs from the original work and is geared towards a different market, the less likely it will affect the potential market for the original.

Can I Photocopy? Many educators wonder if photocopying constitutes under the Fair Use privilege. Personal Use (may constitute for Fair Use) -Individual photocopying of one copy of an article from: *magazine *periodical *small portion of a book -Not Fair Use: *Photocopying multiple copies of anything, entire books, or other works you get from the library or friends. NOTE: There is no practical way to enforce copyright rights against individual photocopiers; authorities are not placed at photocopy shops.

Can I Photocopy? Commercial Use -Photocopying to promote business activities or commercial purposes would less likely constitute for Fair Use. -Publishers and other owners are actively attempting to enforce their rights against commercial users. Teacher Use -Photocopying for scholarly or classroom use is generally accepted as Fair Use. -A set of guidelines for teachers though were created in relation to photocopying.

Can I Photocopy? Teacher Use Guidelines -Single Copies A teacher may make a single copy of the following items: 1. an article from a periodical or newspaper 2. a chart, graph, diagram, drawing, cartoon, picture from a book, periodical, or newspaper 3. a chapter from a book 4. a short story, essay, poem -Multiple Copies The items above may also be photocopied in multiples provided the following: 1. the amount of material is brief 2. the copying is done spontaneously 3. the cumulative effect test is met 4. each copy includes a notice of copyright

Can I Photocopy? Teacher Use Guidelines -Brevity *There are strict numerical limits to how many words may be copied. *Works include: 1. Poetry 2. Prose 3. Illustrations 4. Special Works

Can I Photocopy? Teacher Use Guidelines -Poetry: Multiple copies may be made of poems that consist of 250 words or less that is printed on not more than 2 pages. Up to 250 words can be copied on longer poems. -Prose (articles, story, essay): Multiple copes may be made of prose's of less than 2500 words. Excerpts are up to 1,000 words or 10% of the work. -Illustrations: Multiple copies may be made of one chart, graph, diagram, drawing, cartoon, or picture that is in a book or periodical. - Special Works: This includes poetry or prose of less than 2500 words intended to combine language with illustrations. This specific work can NOT be copied in its entirety. Only an excerpt of up to two published pages and containing no more than 10% of the words in the text may be photocopied.

Can I Photocopy? Prohibited -Even if the guidelines are met, multiple copies can not be made to substitute for the purchase of books, publisher’s reprints, periodicals, and “consumable” works such as workbooks, exercises, standardized tests, test booklets, and answer sheets. -The same teacher can not copy the same material from term to term.

Conclusion In conclusion, copyright laws are very important, not only to the author, but also to the users. Even more so, educators need to be aware of their rights and responsibilities when it comes to using other pieces of works. The Fair Use privilege is an exception to the Copyright Law, but teachers need to be conscious of the guidelines and parameters that allow them this right. So, next time you are copying something for your classroom, ask yourself: 1. Am I following the ‘golden rule?’ 2. Am I meeting the 4 factors? 3. Am I following the guidelines? If YES to all three, you are granted the privilege of Fair Use!

Sources Fishman, Stephen. The Copyright Handbook: What Every Writer Needs to Know. 10 th ed. NOLO, U.S. Copyright Office. Fair Use Jun U.S. Copyright Office. Copyright Law Jun Wikipedia. Fair Use Jun