People have always used copyright protected materials in ways that were not originally intended. These illegal uses cause economic harm to the copyright owners. There are legal ways to use materials without copyright infringement that are called fair use. The key to fair use lies in a cost/benefit analysis of the intentions and results of how the copyright work is used.
Fair Use Under Copyright Law
The Copyright Law of 1976, Section 107, defines fair use and presents guidelines to follow when using copyright protected works. The guidelines are designed to be valid as times change, technology advances, and new uses for materials are found and created.
Fair use law is flexible, and is adjudicated by whether the use of copyright materials bring social or cultural benefits greater than the damage imposed on the copyright owner. If the material is presented in such a way that it induces a transformative change in the recipients, then it might be considered fair use.
Materials are routinely quoted, critiqued, and reported upon in the media today. Fair use law allows quoting copyright material in certain circumstances. News reports include pictures, video, and commentary that may be copyright protected. Seminars and lectures contain materials that often are under copyright. What constitutes the fair use of these materials under current copyright law?
Four Factors Governing Fair Use
There are four areas considered in fair use. These are referred to as the “Four Factors.”
- The nature of the use.
- The nature of the work used.
- The extent of the use.
- The economic effect of the use.
These are four questions a judge or lawyer will consider if presented with a copyright infringement case. As one can see, determining an interpretation of the use of copyright material by questioning an activity with the “Four Factors” makes the definition of fair use flexible.
For example, a teacher may show a video clip with high profile actors in class that depicts the dangers of drinking. A class discussion follows regarding the reasons not to drink excessively, not to drink and drive, and not to allow friends to consume alcohol and drive. The discussion and lesson provides a social benefit protected under fair use laws.
Looking at this example in relation to the “Four Factors” is that the nature of the use is purely educational and clearly has desirable social benefits. The extent of the use is appropriate, since a clip depicting a specific scene was shown to a class.
The extent of the use is minimal, since it is only being used in a classroom setting. There is no economic harm to the owners of the copyright. Therefore, in this example, showing the video clip constituted fair use.
Guidelines and Codes of Best Practices
Advocates in different professions have developed guidelines, or codes of best practices to guide content users. There is a code for documentary filmmakers, one for film scholars that may use films in teaching, another for online video creators, and a code of best practices for media literacy educators. These codes act as guidelines when choosing the appropriate use of copyright materials.
Familiarizing oneself with the guidelines of fair use and codes for best practices, and using them, will protect against unintentional copyright infringement. The Center for Social Media provides links to many of the codes available for free download.