Discuss the fair use doctrine and what factors are considered in determining whether a use is fair.

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gojsawyer eNotes educator| Certified Educator

The concepts of fair use, copyright infringement, and plagiarism are ongoing hot topics for debate and for concern relative to the Internet. Currently, an ever increasing number of people are engaged in creating blogs, social media, and other forms of electronic communication. It is worthwhile for anyone considering creating or posting work electronically to be aware of the pertinent issues relative to copyright for the protection of their intellectual property as well as that of others.

Expert legal sources such as that at Stanford University describe “fair use” as use of copyrighted material for commentary. Such expert sources also describe “fair use” for educational purposes. However, the website of the U.S. Copyright Office states explicitly: “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.” As such, the consensus among experts seems to be that determining whether use of a copyrighted material is fair use or not depends on the material and how it is used.

That being said, the Digital Millennium Copyright Act (DMCA) was passed in 1998. DMCA updated copyright law to include and to apply to a range of digital intellectual property including such formats as web sites, search engines, and online learning. In the context of DMCA, “fair use” of copyrighted material can be somewhat of a moot point. Using, re-using, or repurposing copyrighted material in a derivative, digital format may subject someone to charges of copyright infringement (a legal term, subject to actions under the law) or plagiarism (an ethical term, subject to public scorn and scrutiny).

Further, the fundamental concept of “fair use” in terms of using, distributing, or re-contextualizing works or portions of works that are not one’s own most widely applies to works in the public domain. In the public domain, the copyright has expired or otherwise does not apply and, essentially, belong to the public. The U.S. Copyright Office states : “Works in the public domain may be used freely without the permission of the former copyright owner." As such, many entities, particularly online, routinely re-purpose content in the public domain for their own use commercially. Although such an act is legally protected, it may not free individuals from allegations of plagiarism, particularly if the sources of public domain material are not documented or acknowledged. Also, the U.S. Copyright office asserts that public domain content that has been reorganized in a manner that is unique or creative may be protected under copyright as a so-called collective work.


pohnpei397 eNotes educator| Certified Educator

There are four major factors that must be considered when deciding if a particular use of copyrighted materials is “fair use” that is allowable by law.  Let us examine each of these:

  • The purpose and character of your use.  The basic idea here is that you can use a copyrighted work if you are substantially changing it or giving it a new meaning.  So, for example, it is legal for Weird Al Yankovic to use the tune of a popular song because he is doing a parody of that song.  He has substantially changed the meaning of the work by doing so and his actions are protected under fair use.
  • The nature of the copyrighted work.  In general, it is more acceptable to copy from factual works like biographies than from fictional works.  This is because it is deemed to be more important to disseminate factual knowledge to the public.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.  What this means is that you are generally safer if you use less of the copyrighted work.  Copying two paragraphs of a book is much more likely to be acceptable than copying two chapters.  However, it is also impermissible to take even a small portion of a work if that is the most important part of the work.   Using the most memorable guitar riff and lyric from a song would likely be illegal even if that was all you used.
  • The effect of your use on the market for the work.  If your use is likely to make the copyright owner less able to make money from their work, it is likely illegal. 

Of these factors, the first is typically seen as the most important.