Copyright and Educational Fair Use- Part 2

In my previous blog, I introduced the rights of the copyright holder or owner. When the Founding Fathers set up the copyright laws, they were aware of the social impact that innovation and new research can have on an emerging society, especially at the time when copyright law was created. In addition, they believed that the public should have access to these creations, particularly ones coming from academic research and scholarship. The Founding Fathers, therefore, created Section 107, which is an exception to the copyright law and is called the fair use exception.

The fair use exception hinges on the creators not being financially harmed by the sharing of their works. In other words, educators can use copyrighted works while remembering that the copyright holders have the right to sustain a profit off of their creations.  Four criteria are used to determine whether a use without copyright permission falls under the fair use doctrine exception. The four criteria are listed below.

  1. Purpose and character of use
  2. Nature of the copyrighted work
  3. Amount and substantiality used in comparison to the work as a whole
  4. Effect on potential market for or value of the work

The following chart shows how the courts favor or frown upon acceptable or unacceptable claim of fair use doctrine.

Fair Use Criteria Definition Courts Favor Courts Frown On 
Purpose of the Use Nonprofit vs. commercial; transformative use Nonprofit and educational use; transformative works For-profit or commercial use
Character of the use Criticism, commentary, new reporting, parody, other transformative use Nonprofit and educational use; transformative works For-profit or commercial use
Nature of the copyrighted work Factual in nature (e.g. scholarly, technical, scientific) vs. creative expression Historical Use Creative expression
Amount and substantiality used in comparison to the work as a whole The amount and substance of a work one uses; substance of a work includes the “heart of the work” Smaller portions of a work Larger amounts of a work; using key scenes or the “heart of the work”
Effect on potential market for or value of the work The potential to negatively affect the market for or the value of the copyrighted work Digitizing or copying for   educational purposes as long as the copy or digitization is not sold Digitizing or copying with the potential for sale or profit

Graesser, Heller, & Strand, 2010

Dr. Kelly Campbell, Associate Dean of Information Services at Columbia Theological Seminary

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