Describe Copyright Law and Fair Use Issues in Education (Research Paper Sample)

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Copyright Law and Fair Use Issues in Education
Introduction
Definition of Fair Use
Fair use can be defined as any form of copying copyrighted material for transformative or limited purposes, such as for criticism, parody, or commenting on a copyrighted work. It is sort of a defense against claims of copyright infringement and if one qualifies for fair use, it will not be deemed as illegal infringement. In the US, provisions of sections 106A and 106, fair use of a copyrighted work such as news reporting, teaching (including photocopying or reprinting many copies for students’ use), commenting, research, scholarship and criticism, is not deemed as an infringement of copyright. These were given by the courts in 1961 under the report of Copyrights on the general revision of the U.S copyright Law. Factors considered in determining whether a work is fair use include:
* The nature of the specified copyrighted work
* Purpose and use (including the character of usage). This will include clarification on whether use was for nonprofit purposes in education or of commercial nature.
* Extent and sustainability of the portion used with regard to the specified copyrighted work
* The effect of usage on the copyrighted works’ market and value
Therefore, when obtaining permission to seem impracticable in some cases, use of copy righted material should be limited or avoided unless fair use would apply to that situation. Moreover, a Copyright office cannot be in a position to determine whether a certain use is considered fair or not and cannot also advice a party on any possible violations (Merges and Lemley 18). Attorney are the ones to deal with such scenarios.
Purpose and Use
Four factors are normally used to determine the purpose and use of copyright under different circumstances and consequently whether fair use existed under those circumstances. They are discussed below:
Purpose and Nature of the Copyrighted Work
Fair use is generally used to determine whether work containing unauthorized copyright material is subject to copyright law more so for creation of artistic tendencies that enrich the public. Two issues are at hand here: If the infringement is new and used for commercial or nonprofit purposes and whether the new use is transformative. If the latter is the case, it will be deemed as exploitative and unfair. Therefore, the commercial and nonprofit distinction is very crucial.
Commercial uses include issuing of copyrighted materials for sale, using such materials for campaigns, or displaying the materials on websites to attract viewers. Even without the factors in the latter statement, repeatedly copying and exploiting copyrighted works is also considered as commercial use. If use is noncommercial in nature, it is more likely to be acceptable under fair use policy. This holds as long as they do not deviate from the original profits of the artist. The latter is important for knowing the motive of using the copyrighted material. The profit and nonprofit distinction is important not for knowing if the sole motive for the use is monetary gain, but for knowing if the infringing user has a chance of profiting from the copyrighted material without paying the customary price (Merges and Lemley 21).
Transformative and superceding purposes are also looked at under copyright law. For example, the more an individual adds something new to the copyrighted material, the less likely it is to be considered copyright. The converse is also true. A very good example explained by the latter statement is the case American Geophysical Union v Texaco Inc., 60 F.3d 913 (1995).
Case Example: American Geophysical Union v Texaco Inc., 60 F.3d 913 (1995).
The court ruled that the photocopying of individual articles by a Texaco student was not fair use even though it was for his own research. The court amended its opinion to that of systematic copying that was to advance profit goals of the larger organization (Lerner and Poltorak 91).
Purpose: The purpose was to strengthen Texaco’s profits, even with the consideration that it was for research purposes. Exact photocopies are not considered transformative at al since they do not add on to anything valuable in the original work.
Nature: The nature of the articles were factual, which is in favor of fair use as stated before.
Amount: The article was independent and therefore the photocopying was copying the whole copyrighted work.
Effect: The court concluded that the photocopying was directly competing with the ability of the original publishers to collect legal fees.
Superceding an original document is more likely to fall under exploitation since there is very little transformation being done in the original work. Parodies, for example, are considered transformative. They shed light on an original document and create a new one in the process.
Nature of the Copyrighted Work
It is to note that copyright protection is only viable for creative works and expressions rather than bare facts or ideas. Therefore, if a certain copyrighted work is factual in nature, then the purpose for using it should also be the same, in most cases. Therefore, reuse of the work is generally fit and considered as fair usage (Merges and Lemley 26). This does not apply if the work is not yet published or released for public appearance. Since the author of any work usually controls the timing of release, any information copied from the same is not considered fair use and is actually a violation.
In an educational article for example, the facts in the book may be reasonably copied to generate a separate document. This applies to only facts that are known to the general public and recognized by various institutions. On the other hand, the more fictional and creative a copyrighted material is (such as fiction novels, or animations), the more their unauthorized use is less likely to be considered fair.
The Portion Used
This has to do with the amount of original work that has been included in the new/resulting document. If the amount copied is more from the original work, it is less likely to be considered as fair use. This includes photographs. For example, posting an original photograph that is copyrighted somewhere on the internet is not considered fair use, unless in very rare conditions.
Case Example: Cariou v Prince,_F.3d_(2d Cir. 2013)
The court rules in favor of the defendant (Prince). The plaintiff sued him for reasons involving copyright of photos he took while living with Rastafarians in Jamaica. Prince on the other hand, did include many photos in of Cariou’s original photos in his work in 30 collages. However, since the works were transformative in terms of size, aesthetics, and expression, it qualified for fair use. The first district court ruling was in favor of Cariou. On amendment, the court found that secondary use many constitute fair use even if used for purposes other than commenting, criticism, teaching, research and scholarships. It found that the new work had altered the original one with new meaning, expression, and message (Lerner and Poltorak 93).
Quality and importance of the material is also looked at in this case. The more important a section/portion is to the original work, the more likely the resulting document is exploitative, no matter how small that part is. Moreover, no distinct measures of quantity are in existence when it comes to the law. Quantity is measured according to the amount needed to serve a particular objective and the length of the original document. Therefore, for pictures, it creates a lot of controversies since users, according to the law, usually want the full ‘amount’ or rather the full image. This occurs even in short movies or clips where the small creative elements might be borrowed.
Case Example: Maxtone-Graham v. Butchaell, 803 F. 2d 1253 (2d Cir. 1986), Cert. Denied, 481 U.S. 1059 (1987).
In this case, the plaintiff wrote a book about interviews in which women talk about their abortions and pregnancies. Apparently, the defendant wrote his own book dwelling on the same subject and when he borrowed permission to use long excerpts from the original work, he was denied access to publish such pieces by the plaintiff. Surprisingly, the defendant just went ahead and published his work and he included the unpermitted excerpts.
Purpose: The main purpose of the book was to educate people on abortion and state the author’s opinion on the issue. Regardless, the defendant’s book was published by a commercial press and there was possibility of monetary gains.
Nature: The women’s interviews were factual to a great extent.
Amount: The amount quoted from the book was approximately 4.3 percent of the plaintiff’s work and was not considered excessive. The verbatim passage were not central to the plaintiff’s market.
Effect: The plaintiff’s work was noted to be out of print and less likely to appeal to the same readers. Therefore, the court ruled in favor of the defendant since the quotations were deemed to be permissible although they were lengthy. The matters regarding denial of permission were implicit throughout the trials. Therefore, fair was present and is only meaningful if the author builds his work on the original document.
The court concluded that use of full newspaper articles was not fair use. This case offers caution between restricting access as opposed to allowing public access to materials ((Lerner and Poltorak 99).
Effect on the Market
This is the most complicated of all the other factors. It is regarded as the most important factor in some courts. The court in this case looks at the impact of using the ...