Fair Use

Every now and then I bump up against copyright law. It’s just a professional hazard. Currently, I’m trying to decide if I have a right to upload recordings of university music ensembles to a local area network for the listening enjoyment of all the RU campus community. Ugh. The set of federal regulations that comprise copyright law is very complex, and many of us shy away from really getting into it. But, I think every organization that deals with the creation and dissemination if information, like a university, should have a few things well understood. One thing in particular is fair use.

Fair use essentially asserts that even though a “work” (book, article, musical score, etc.) is protected from copying under copyright law, you might have a right to make a copy for certain purposes. Normally, you have to pay or ask permission to make copies of protected works. Fair use says you don’t have to pay or get permission to make a copy – if you can meet a set of conditions. Theses conditions are called tenets, and get at the purpose of the copying. There are four tenets of fair use:

1. the purpose and character of the use, including whether such use is of a 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; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

To make a fair use argument (an argument that says “under fair use I can make a copy without payment or permission”), all tenets must be considered. It’s a great balancing act. One can’t simply say that the copying is for educational purposes, for instance, and be done with it. There are three remaining tenets to look at. You have to look at them all. To make it little easier, when considering the tenets ask yourself these questions:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Are you going to make money off the copy? If so, you are probably not in fair use territory.

     2.  the nature of the copyrighted work

Is the thing you want to copy a creative work (musical score) or mostly factual? Creative works generally get more protection that factual ones.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Generally, it’s been an accepted practice that copying up to 10% of something is ok.

4. the effect of the use upon the potential market for or value of the copyrighted work.

Will the copying potentially cause the copyright holder to lose money?

Some copying can very strongly be supported under fair use, some not. Usually, it’s not a clear picture. 

The University of Minnesota Library has created a handy checklist for fair use, and this leads nicely though the process.

http://www.lib.umn.edu/copyright/checklist.phtml

 So where am I with the RU musical recordings? That’s another story – and one which is even murkier than fair use. I’ll keep you informed. In the meantime, the Roosevelt community will benefit from a deeper understanding of fair use. We have rights – it’s best we understand them.

Here are a few more useful links.

US Government web site on copyright
http://www.copyright.gov/

Copyright Clearance Office has a very good reference site
http://www.copyright.com/Services/copyrightoncampus/

The University of Texas has this “crash course” in copyright
http://www.utsystem.edu/ogc/IntellectualProperty/cprtindx.htm