Posts Tagged ‘Fair Use’

An Example of Doctrine of Fair Use Overriding Classroom Guidelines

Tuesday, July 21st, 2020

The most recent posts have looked at the Doctrine of Fair Use and the educational guidelines incorporated into it. The original guidelines, known as the Classroom Guidelines, were factored into the Copyright Act of 1976, and allow educators to reproduce certain types of and portions of work to be used in a learning environment.

Although the Classroom Guidelines allow a certain amount of leniency within the Doctrine of Fair Use, the guidelines do not trump the requirements of fair use, nor do they overpower the rights of the original copyright holder.

The case below is an older, but strong example of the Doctrine of Fair Use overriding the Classroom Guidelines. Note, the courts may choose to follow the guidelines, but must ultimately rule in such a manner that favors the four criteria used to determine fair use set forth in §107 of the Copyright Act.

In the case, Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991), the defendant, Kinko’s Graphics Corp., decided to create its own set of low-cost course packets to sell to students by photocopying materials that were obtained from college professors. However, the for-profit copying service did so without the proper permissions and without paying the licensing fees that accompanied the material in the course reading lists. Here, the plaintiffs were a group of publishers who held copyrights for some of the material that was being used in the defendant’s course packets. Kinko’s claimed that its reproduction of the material was fair use, as the course packets were for educational purposes.

In this case, the court opted not to adopt the Classroom Guidelines as a legal standard and used evaluated each of the four fair use criteria individually, even though Kinko’s asserted fair use because of the educational nature of the packets.

For the first factor, which concentrates on the purpose and nature of the use, the court examined whether the material was being used in a commercial or non-commercial manner. It found that the use was commercial, as Kinko’s intended to profit from the work, and it was not used in a non-profit or educational nature. Moreover, the court also looked at the transformative nature of the work, and whether or not the defendant further developed the original work in some way. Again, it determined that the use was not transformative as the defendant simply photocopied the pre-existing material to create the course packets.

For the second factor, which concentrates on the nature of the copyrighted work, the court examined the originality and creativity of the original work being reproduced. The court found that this factor weighed in favor of fair use since the material that the defendant was reproducing was mainly factual. The reading lists being reproduced focused mainly on fields of study and did not meet the minimum level of creativity. However, if the original work had contained a unique or one-of-a-kind element this factor may not have weighed in favor of fair use.

For the third factor, which concentrates on the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the court examined whether the material being reproduced was essential to the original work. It found that Kinko’s was reproducing most essential portions of the main works. Because the defendant was recreating course packets for a lower cost, it had to reproduce the most important portions of the original works in order to give the students an effective discounted option. Therefore, the court found that this factor weighed against a finding of fair use, even though the defendant was not copying the works in their entirety, it was copying the most critical portions.

For the fourth factor, which concentrates on the effect of the use upon the potential market for or value of the copyrighted work, the court examined whether the reproduction of the copyrighted works would encroach on the original creators’ rights. In this case, the court found that the reproduction was indeed affecting the rights of the original creators, as students were purchasing the discounted course packets, made by Kinko’s, instead of the full-priced packets originally created. Since the reproduction was hindering the monetary sales generated from the original works, the court found that this factor weighed against a finding of fair use.

In conclusion, three of the four factors weighed against a finding of fair use and the court ruled in favor of the plaintiffs.

While it is important for copyrighted work to be shared for certain purposes, it is the job of the courts to ensure that an original copyright owner will not be hindered by the reproduction of the work, in a commercial or non-commercial setting. In this case, specifically, the three factors that weighed against a finding of fair use were far greater than the one that supported fair use. Simply because the defendant was selling its products to students, did not automatically make it an educational use. When looking at the bigger picture, the Guidelines were set forth for educators to expand the knowledge of their students without hindering the original creators of the works being used. In this case, educational material was being used in a for-profit manner which did hinder the original creators because their sales were being negatively impacted in the marketplace.


Friday, July 17th, 2020

As mentioned in the last post, this post will take a look at the TEACH Act, which is an extension of fair use in an educational setting. However, before further examining the Act, it is important to note that the Act is an extension of the Fair Use Classroom Guidelines.

The Classroom Guidelines were set forth in §107 of The Copyright Act of Oct. 19, 1976 and set the minimum standards of fair use for reproducing copyrighted material in non-profit educational institutions. These guidelines allow educators to copy certain portions and amounts of work for in-class use as an educational tool. Yet, as thorough as these guidelines were for in-class use, they did not account for online learning, which was not yet created. On Nov. 2, 2002, President Bush signed the TEACH Act into law. TEACH stands for Technology, Education and Copyright Harmonization, and furthers the Classroom Guidelines into online-learning environments.

Although the TEACH Act provides more freedom when using copyrighted work, there are still requirements that must be met in order for an educational institution to qualify for the exemptions provided under the Act. The main requirements are as follows: (1) The institution must be an accredited, non-profit educational institution. (2) Use of the copyrighted work must be for supervised educational activities. (3) The use must be limited to a set number of students enrolled in a specific course. (4) The use must be for real-time classes or pre-recorded sessions. (5) The use cannot include the transmission of textbook materials, which means one textbook cannot be bought and then copied for distribution. As an aside, the purpose of allowing digitization of work is not to harm the sale of copyrighted work, as that would be in violation of the Doctrine of Fair Use. (6) The institution must have clear and publicized copyright policies, which are to inform students that the work may be copyright, and all copyrighted online work must have a notice of copyright. (7) The institution must implement technological measures to ensure compliance with the policies above, and the measures must go further than password protection. Some measures may include user and location authentication through IP verification, print-disabling and cut-and-paste blocking. See 107th Congress H.R. 2100 Sect. 487

While the TEACH Act creates certain leniencies, its purpose is to allow remote students to have the same educational resources as in-person students. The Act does not supersede the Doctrine of Fair Use or any pre-existing digital licensing agreements.

Copyright and Fair Use

Monday, June 29th, 2020

Previous posts on the subject of copyright have discussed who the author of a work is, what is protected by copyright, what is not protected by copyright and the benefits of copyright notice.

This post will take a look at the Doctrine of Fair Use. This is a widely important section of copyright law because it helps to shield an original author of a work fixed in a tangible medium from copyright infringement.

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” As stated in 17 USC §§107 – 120, the circumstances include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It is, however, important to note that there are certain provisions in §106 and §106A that may preclude the Fair Use Doctrine.

When discussing fair use, §107 sets forth a set of four criteria that are to be evaluated when determining whether or not a certain use is fair or not. The four criteria are as follows:

  • Purpose and character of use: This factor considers whether the use is commercial versus non-commercial (such as nonprofit and/ or education purposes). When examining this first criterion, the court studies how the third party is using the copyrighted work. Often, the courts are more likely to find fair use if the work is being used in nonprofit, educational and other non-commercial settings. That being said, this does not automatically mean that fair use in one of these settings will automatically be found without first balancing the other three factors listed below. Moreover, when examining this factor, courts look at whether a work is being used in a “transformative” manner. When referring to “transformative” use, this means that the third-party user of the copyrighted work has added to or further developed the original work.
  • Nature of the copyrighted work: When looking at the nature of the copyrighted work, the courts assess the level of creativity or originality of the copyrighted work. This means that the more unique a work is, the less likely the courts are to find fair use. Therefore, courts may be less likely to find fair use for the unauthorized use of a one-of-a-kind novel, movie or book versus a technical manual or news article. As was explained in a previous post, certain things, such as instructions, may not be copyrighted, but the elements that make it unique may be. In this way, it is more likely for a court to find fair use for a work that is less unique.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider both the quantity of the work being used and the quality as well. On the surface, a court is less likely to find fair use if a large portion of the copyrighted material is used, versus a small portion. However, in some situations, a court may find fair use if a third-party uses the entire copyrighted text, but it may not find fair use of even the smallest portion of the section is determined to be the “heart” of the work. In short, this factor works to protect the essence of a copyrighted work.
  • Effect of the use upon the potential market for or value of the copyrighted work: The fourth and final criterion for determining fair use steps away from the work itself, and it looks outward into the marketplace. As explained in an early post, one of the benefits of copyright notice is that it acts as notice of ownership to the public. This means that if a work is unlawfully reproduced or copied, the original owner may claim copyright infringement. So, the courts use this factor to determine how the third-party user is using the copyrighted work, and if there is a chance that it may encroach upon the original author’s rights, such as monetary sales from the work. Aside from the effect on the marketplace in a monetary manner, the courts also must look at the safety of the widespread public. If there is a chance that the unauthorized use of the work could cause substantial harm to the public, the courts would be less likely to find fair use.

Though these are the four factors courts use to determine fair use, these criteria are not the only information used in every case. Because each case has a different set of facts, the courts must look at each case on a case-by-case basis. There is no set amount of work that determines fair use. This is also mentioned in the third factor of the test regarding the amount and substantiality of the work being used. The courts may find fair use of 100 hundred pages in one case but may not find fair use of one page in another. The intent of the Fair Use Doctrine is to protect the rights of the original author, while not restraining the public from learning or benefitting from a previously copyrighted work. A later post will delve into the TEACH Act, which is an extension of fair use in an educational setting.

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