XU EDMS 350/550

Fair use is a uniquely U.S. concept, created by judges and enshrined in the law. Fair use recognizes that certain types of use of other people's copyright protected works do not require the copyright holder's authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder's exclusive rights to reproduce and otherwise reuse the work.

Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.

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

The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone's creative work.

The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of, or so important to, the original overall work as to be beyond the scope of fair use.

The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing. At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use. At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.

"International" Copyright There is no such thing as an "international copyright" that automatically protects a work throughout the world although more than 150 countries have ratified a treaty intended to accomplish as many of the benefits of "international copyright" as possible. Generally, if a work is protected in the U.S. it is protected in most countries because the U.S. adheres to the leading copyright convention, the Berne Convention, which is administered by the World Intellectual Property Organisation (WIPO).

ignorance of the law is no excuse

Teachers have a moral obligation to practice integrity and trustworthiness. Just as they expect students to refrain from cheating on tests and from taking others' belongings at school, teachers should honor the law when it comes to fair use and copyright. Thus, teachers not only should protect themselves from legal liability but should also model honesty and truthfulness by knowing when and what may be copied for educational use.