A Problem with a 1-Word Solution

9 September 2014

In our research, we find The Perfect Stuff to incorporate into our lecture, a classroom module, or a piece of writing we plan to circulate or publish. Can we do so legally?

Of course! say some. Your purpose is educational. That means it falls under the Fair Use principle of U.S. Copyright Law, which explicitly tells us:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.    ¹   

Not so fast! others warn. There are specific criteria we must meet. In fact, that same passage of 17 U.S. Code § 107 sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work²

Does that help? Maybe. But if we take that path, there are still other muddy waters that can sink us. Consider these five:

• Criteria 1's reference to "commercial nature," does not mean that so long as we do not charge for it, we can give away what someone else has (a) labored to produce and (b) deserves an income from. To quote NOLO's Law for All: "The more material you take, the less likely it is that your use will be a fair use."³

• The U.S. Copyright office also warns: "The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."⁴
• Stamford University Libraries, Copyright and Fair Use, has an even more perplexing assessment:  "The only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court."⁵
• Cornell University Law School's Legal Information Institute cautions: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”⁶
• University of Washington's UW©opyrightConnection adds a major caveat: "The fair use defense to copyright infringement under §107 of US copyright law is much broader than international fair use provisions. International fair use exemptions tend to be more specific in nature."⁷

So what can we do to ensure that our proposed reuse is legal?   Ask.  We're researchers. We should be able to locate the contact info for a writer whose work is authoritative enough that we want to use it. Second best: read every word of NOLO's "The Fair Use Rule"⁸ and the “practical tips” section of UW©opyrightConnection’s article, “Four Factor Test.”⁹