Copyright Law and Related Issues
All Copyright Information provided by the Software
Information Industry Association (SIIA)
The Copyright Act & Fair Use
The Copyright Act (17 U.S.C. 106) gives the owner of a copyrighted work
the exclusive right to reproduce the work, to prepare derivative works,
to distribute copies of the work, and to perform or display the work
publicly. In most cases, no one can make copies of a copyrighted work
without the copyrights owner’s permission, and anyone who does so is
an infringer of the copyright and may be held liable to the full extent of the law.
The Copyright Act sets forth four factors that courts are to consider
in determining whether copying of someone else’s work is permitted by
the doctrine of fair use:
1. The purpose and character of the copying, including whether
the use is of a commercial nature or is for non-profit educational
purposes – i.e., copying for nonprofit education uses may be more
likely to qualify as fair use;
2. The nature of the work being copied – i.e., copying from works
that are primarily factual in nature (science book) is tolerated more
than copying from more creative works;
3. The amount and substantiality of the portion that is copied in
relation to the copyrighted work as a whole – i.e., the more that is
copied, or the more significant the portion that is copied (regardless
of the quantity) the less likely that fair use will apply; and
4. The effect of the copying upon the potential market for or
value of the copyrighted work – i.e., has an adverse impact on the
market for the original work. (Copying an entire supplemental science
software program, rather than buying it, would not be fair use, but piracy.)
Determining whether fair use exists depends on particular circumstances.
To assist educators in evaluating whether their intended copying of
copyrighted works will violate the law, the legislative history of the
Copyright Act includes a set of Guidelines, “Agreement on Guidelines for
Classroom Copying in Not-for-Profit Educational Institutions”, that help
define what constitutes “fair use” for classroom copying. However, these
Guidelines only cover the reproduction of books, periodicals and musical
compositions, not software.
It is difficult to know when something is “fair use.” The best strategy
is to contact the publisher to find out if a license is available for
your specific needs. The rule of thumb is to assume that “fair use” does not apply.
The Copyright Act provides other exemptions that may apply to specific educational activities.
The US Copyright Office publishes an excellent summary of Section 107
of the Guidelines. The publication entitled Circular 21 – Reproduction
of Copyrighted Works by Educators and Librarians can be requested by calling
the Forms Hotline at (202) 707-9100.
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