The principles of fair use are in part a compromise between educational goals and protecting the rights of the creator. Section 107 of the Copyright Act contains a list of reasons on which the reproduction of a work may be considered to be a fair use.
Determining fair use
This section also sets out four factors to be considered in determining whether or not a particular use is fair. Those factors include purpose, nature, amount and effect. (U.S. Copyright Office, 1999)
Each of these factors must be taken into account. It is not an all or none, or is it a majority rule. Having three of the four items in favor of fair use does not necessarily mean that the courts would see the use as being fair. For example, if the use somehow completely eliminated the potential market for the work despite fitting into fair use parameter on the other three guidelines, it would not be fair use. All four are taken into account by the courts in determining fair use.
For what reason is the material being used? The courts basically give preference to non-profit educational uses, then other educational uses and lastly to commercial uses. So, if the primary purpose of the use is commercial then that weighs against fair use. However, use for an educational does not guarantee fair use.
What type of work is it? Is it factual (scholarly and technical)? Is the work creative (examples poems, photography). The more factual a work is the more use weighs in favor of favor use.
How much of the work is being used? This can be difficult to determine. Exactly how much of a 10 chapter book can be used before the use becomes unfair? Or how much video can be used from a 10 minute sequence before use becomes unfair. Important to keep in mind is what is being used. If what is being used is the essence of the work then the impact of use may have the same effect as using the whole. In these cases the exact length of time will be legally dependent on the nature and purpose of that use. As a result guidelines that give set amounts agreed upon are not necessarily law.
How does the use of that portion of the work effect the potential commercial market for the work? This is one item that is clearly intended to protect commercial interests. However, since it must be taken into account under the context of the other three principles, commercial interests do not become the most important item. Still, if the use clearly reduces the potential market of the given work then the use would not be considered fair with regard to effect.
Fair use or infringement?
The distinction between "fair use" and infringement is often unclear and not easily defined. There is no specific number of words, lines or notes that may be safely taken without permission. Acknowledging the source of copyright materials does not substitute for obtaining permission. (U.S. Copyright Office, 1999)
KCC policy on fair use of copyrighted works
As an institution devoted to the creation, discovery and dissemination of knowledge to serve the public, Kankakee Community College is committed to complying with all applicable laws regarding copyright. That commitment includes the full exercise of the rights given to users of copyrighted works under the fair use provision of federal copyright law.
It is therefore the policy of KCC to facilitate the exercise in good faith of full fair-use rights by faculty and staff, in furtherance of their teaching, research, and service activities. To that end KCC shall:
- inform and educate its faculty and staff about their fair use rights and the application of the four factors for determining those rights set forth in 17 U.S.C. Section 107
- develop and make available effective resources concerning fair use and copyright laws generally and the application of fair use in specific situations
- avoid, whenever possible, adopting or supporting policies or agreements that would restrict fair use rights.
Frequently asked questions
Who is subject to the fair use policy?
This policy applies to all faculty and staff of KCC. While the policy does not address the activities of students who are not also employed by the college, the advice and guidance about fair use will be available to students as well.
Why not put explanations about fair use in the text of college copyright and fair use policies?
fair use is an area of the law that changes with court rulings, and that is adaptable to changing needs, technologies, and objectives. To put details into the policies regarding fair use during the time when it is in a state of continuous transition would lead to ongoing revisions.
Who is responsible for making fair use decisions?
the primary responsibility for decisions about fair use belongs to the individual with authority to oversee the relevant project or activity (faculty teaching the course). Thus if you are responsible for teaching the course or overseeing a project, or planning a program you are responsible for learning about the applicable fair use and reaching the appropriate conclusion.
Who can help me with fair use decisions?
the college recognizes that innovative instruction give rise to the need for additional insight or support for rethinking fair use. Contact Karen Becker, firstname.lastname@example.org, with questions or assistance applying this policy.