FAIR USE OF COPYRIGHTED MATERIALS
FREQUENTLY ASKED QUESTIONS
Q: What is a Copyright?
A: A copyright is the right to control your works of authorship and decide who may use or reproduce your work. Your right is granted and limited, however, by the Copyright Act of 1976, as amended, (“Copyright Act”). You have this control for a certain period of time, depending on when you created the work (see table created by Lolly Gally at http://www.unc.edu/~unclng/public-d.htm), and if, from the beginning, you establish your right to prevent unauthorized use of the work. The Copyright Act does allow some Fair Use of your work and, conversely, allows your Fair Use of other authors’ copyrighted work.
The Copyright Act is a federal statute. It defines “copyright” as “a property right in an original work of authorship (such as literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform and display the work.” 17 U.S.C. 102.
Q: What are some examples of Copyrighted Materials?
A: Types of copyrighted material include: books, articles, software, movies, photographs, power point presentations, Web pages, songs, plays, etc. In essence, a copyright can be asserted for any original work of authorship fixed in a tangible medium of expression.
Q: Do copyright laws apply to software and other materials I find on a web site?
A: Yes, the same copyright rules apply to materials on a web site as apply to materials in a book, article, or other medium. In fact, because of the accessibility of materials on the Internet, the law imposes an even higher standard of protection for online materials. Unless the site includes a specific notice that the material is in the public domain (e.g., UCAR’s MM5 or materials on U. S. Government Web sites), you should assume copyright laws apply.
Also, any UCAR employee’s copyright infringement on UCAR web sites also implicates significant legal rights and responsibilities for UCAR. See, the Online Copyright Infringement and Liability Limitation Act at 17 U.S.C. 512 et seq.
Q: What is Fair Use?
A: Fair Use is a statutory right (See 17 U.S.C. 107) that in some specific instances allows you to infringe an author’s exclusive right (copyright). You may use a work in a limited manner “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The concept of Fair Use recognizes that use for these purposes will advance knowledge and perpetuate the exchange of ideas while protecting the author’s broader rights. The following four factors set forth in the Copyright Act must be considered in combination to determine if use of a work qualifies as “Fair Use:”
1. What is the purpose and character of the use?
2. What is the nature of the copyrighted work?
3. What is the amount and substantiality of the portion used in relation to the whole? and
4. What is the effect of the use on the potential market?
The next four questions give further explanation of these four factors.
Q: What purposes are acceptable for Fair Use?
A: Section 107 of the Copyright Act allows use for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. Similarly, the law allows Fair Use if the user transforms some or all of the first work into a second work containing new views and insights. The law favors educational uses. These uses do not violate the author’s copyright and you do not need the author’s permission to excerpt materials for these uses. If the use is commercial and competes with the copyrighted work, however, it is less likely to qualify as Fair Use. Remember though: an analysis of fair use must consider the three remaining factors, not just the purpose.
Q: What is the nature of the copyrighted work?
A: This factor analyzes whether the copyrighted material is factual or imaginative. One of the more famous copyright cases involves republishing a telephone book. The nature of a telephone book is factual and use of the information without the author’s written permission is Fair. In the analysis of the four factors, your case for Fair Use starts to get stronger if you have used “factual” materials; but you still must consider all four factors. On the other end of the spectrum, if the copyrighted work is yet unpublished and represents a compelling new academic theory, it is highly unlikely your use is appropriate as Fair Use.
Q: What if the excerpted copyrighted material is only one paragraph?
A: For this factor, consider both the quantity and quality of the excerpted portion of the copyrighted work. Surprisingly, even one paragraph of a thirty-page text may not qualify as Fair Use if that one paragraph is the crux of the author’s work or if the paragraph represents the substantive portion of the copyrighted work.
Q: Do I need to conduct market research before using copyrighted materials?
A: For this factor, you need to consider to what extent your work will compete with the copyrighted materials. Ask whether your use will have an adverse economic impact on the author. If the copyrighted materials have a significant commercial value for a particular market, for example, a new college textbook, and you intend to release your work to the same market, your use must closely adhere to all four factors. Otherwise, you will need the author’s permission to use.
Q: If I am certain the use qualifies as Fair Use, how may I then incorporate the copyrighted materials in my work?
A: Once you have completed your analysis of the four factors and have made a determination that your use will be Fair Use, you may go forward with publication without the author’s permission. You must, however, include a proper attribution to the author. You may not omit this attribution.
Q: What if I am uncertain that my use will be Fair Use?
A: Despite attempts to simplify the law of Fair Use in the Copyright Act, the four factor Fair Use analysis does not always result in a clear cut answer. The four factors merely set up a balancing test that on some occasions only the U.S. Supreme Court has been able to resolve. In the meantime, the Office of General Counsel is available to assist you in reviewing these four factors and your intended use.
Q: What if your use does not qualify as Fair Use?
A: In this case, you must secure the author’s written permission to use the work. If the author provides you a license agreement to bind UCAR, the Office of General Counsel will review, negotiate, and sign the agreement.
Q: Why must I do this analysis?
Researchers are well trained with regard to the research integrity guidelines for when and how to use another’s work without permission for academic or scholarly research. When the copyrighted material starts to have some monetary value, an infringing use may lead to more serious consequences.
If you infringe an author’s copyright, you may be personally liable for civil monetary damages or criminal damages if the value lost to the copyright holder is greater than $1,000. Penalties can reach up to $100,000 if the violation is intentional or knowing. If you are sued for copyright infringement, you would assert Fair Use as one of your legal defenses. If you are not able to satisfy the Fair Use test, you may be liable for monetary damages and may expose UCAR to monetary damages. What may be worse in an academic and research environment is that the author may prohibit the publication of your scholarly work. Finally, in these cases, authors can sue the individual and the corporation separately. Not only are you exposed to liability but UCAR is as well.
Rather than wait until the author claims you have infringed the copyright, however, you want to evaluate your use before including the copyrighted materials in your book or on your web site.
Q: What if someone is using my copyrighted materials in a way that is not Fair Use?
A: Contact the Office of General Counsel and we can help you investigate the unauthorized use.
Q: Where can I get more information?
A: You can find hundreds of sites on Copyright and, specifically, on Fair Use. Here are a few that we recommend:
The Library of Congress: http://www.loc.gov/
Stanford University: http://fairuse.stanford.edu/
University of Texas: http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm
And for the text of the Copyright Act, see: http://www4.law.cornell.edu/uscode/17/
DISCLAIMER
The information on this site is not legal advice but only general information about the law for UCAR employees. For legal advice about Fair Use, please contact the Office of General Counsel.
© Catherine Shea 2002
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