Five Simple Rules Under the ‘Fair Use’ Doctrine
If the material has been properly copyrighted, it is generally illegal to copy it without permission. Does that mean that no one can ever legally use it without express written permission from the author or creator? Surprisingly, the answer is “no” in some cases… but not always. It all depends on the application of the “fair use” doctrine in the Copyright Act.
How it works: Briefly stated, an author can make limited use of another author’s work without obtaining specific permission to do so for purposes of commentary and criticism. For instance, fair use often occurs in the realm of news reporting, research in scholarly abstracts, or learning tools used by teachers in educational institutions. One example of fair use is a book review in a magazine that quotes short passages of a best seller. Generally speaking, however, simply copying someone else’s work over is NOT fair use.
Violations can be triggered when a user is trying to profit from the material in some way. However, in some cases, use that benefits the public can still qualify as fair use — even though it generates revenue.
Sound confusing? It is. Here are five simple rules that can help clarify the rule for authors and users.
1. If you’re modifying the content for your own purpose, as opposed to copying it verbatim, it’s more likely to be considered a fair use.
2. If you’re competing business-wise with the source that you’re copying from, the use is usually a violation, especially if it is intended for the same market.
3. A user won’t be let off the hook merely by giving attribution or credit to the author. This attribution doesn’t affect whether the use will be treated as a “fair use” or not.
4. The more you borrow, the more it is likely that the use will not be treated as a fair use. Obviously, there’s a big difference between quoting a line from someone and recreating an entire chapter from a book.
5. Quality can be as important as quantity. If the material you’re copying is essential to the theme of the work, a user could be found to have violated the rule.
In summary: If you’re not sure if you’re on firm ground in applying the fair use doctrine — or if you’re seeking greater protection for your own work — consult with an experienced copyright attorney.
Academic Uses Not Always Fair Use
Years ago, many colleges and universities believed that photocopying copyrighted material into bound “coursepacks” that were sold to students was a fair use of the materials. However, in two court cases in the 1990s, it was decided that this type of copying without permission from the author is not a fair use. (Basic Books v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services, Inc.) Coursepacks contain information such as newspaper and journal articles, course notes, syllabi, sample test questions and excerpts from books.