Misconceptions about “Copyrights” and “Fair Use”

· Writing:Publishing:Posting
Authors

Misconceptions about “Copyrights” and “Fair Use”
(Author’s Highlights or comments are in Bold Italics) (Dec, 2011)

There are many people who accuse others of, “Infringing Copyrights” or guilty of “Plagiarism” because they may have used a “Quote with source identified” because the accuser does not understand the limitations of such rights through “ignorance” or out of “malicious intent to control others.” These accusers further “report” such posts and get the post censored for no good purpose and wrongly executed. Thus I felt that it was important to air this topic with plenty of “Copy and Paste with source identified” to clarify this situation.

“Sooner or later, almost all writers quote or closely paraphrase what others have written. For example:
Andy, putting together a newsletter on his home computer, reprints an editorial he likes from a daily newspaper.
Phil, a biographer and historian, quotes from several unpublished letters and diaries written by his subject.
Regina, a freelance writer, closely paraphrases two paragraphs from the Encyclopedia Britannica in an article she’s writing.
Sylvia, a poet, quotes a line from a poem by T.S. Eliot in one of her own poems.
Donnie, a comedian, writes a parody of the famous song “Blue Moon” he performs in his comedy act.
Assuming the material quoted in these examples is protected by copyright, do Phil, Regina, Sylvia, Andy, and Donnie need permission from the author or other copyright owner to use it? It may surprise you to learn that the answer is “not necessarily.”
Under the “fair use” rule of copyright law, an author may make limited use of another author’s work without asking permission.

Fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the “most significant limitation on a copyright owner’s exclusive rights. If you write or publish, you need a basic understanding of what is and is not fair use.

Uses That Are Generally Fair Use

Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses:
Criticism and comment — for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment.
News reporting — for example, summarizing an address or article, with brief quotations, in a news report.
Research and scholarship — for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author’s observations.
Nonprofit educational uses — for example, photocopying of limited portions of written works by teachers for classroom use.
Parody — that is, a work that ridicules another, usually well-known, work by imitating it in a comic way.
In most other situations, copying is not legally a fair use. Without an author’s permission, such a use violates the author’s copyright.

Non-Commercial Use is Often “Fair Use”

Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use. For example, using the Bob Dylan line “You don’t need a weatherman to know which way the wind blows” in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be.

Benefit to the Public May be “Fair Use”

A commercial motive doesn’t always disqualify someone from claiming a fair use. A use that benefits the public can qualify as a fair use, even if it makes money for the user.
For example, in its advertising a vacuum cleaner manufacturer was permitted to quote from a Consumer Reports article comparing vacuum cleaners. Why? The ad significantly increased the number of people exposed to the Consumers Reports’ evaluations and thereby disseminated helpful consumer information. The same rationale probably applies to the widespread practice of quoting from favorable reviews in advertisements for books, films, and plays.

When Is a Use a “Fair Use”?

There are five basic rules to keep in mind when deciding whether or not a particular use of an author’s work is a fair use:
Rule 1: Are You Creating Something New or Just Copying?
The purpose and character of your intended use of the material involved is the single most important factor in determining whether a use is a fair use. The question to ask here is whether you are merely copying someone else’s work verbatim or instead using it to help create something new.
Rule 2: Are Your Competing With the Source You’re Copying From?
Without consent, you ordinarily cannot use another person’s protected expression in a way that impairs (or even potentially impairs) the market for his or her work.
For example, say Nick, a golf pro, writes a book on how to play golf. He copies several brilliant paragraphs on putting from a book by Lee Trevino, one of the greatest putters in golf history. Because Nick intends his book to compete with and hopefully supplant Trevino’s, this use is not a fair use.
Rule 3: Giving the Author Credit Doesn’t Let You Off the Hook
Some people mistakenly believe that they can use any material as long as they properly give the author credit. Not true. Giving credit and fair use are completely separate concepts. Either you have the right to use another author’s material under the fair use rule or you don’t. The fact that you attribute the material to the other author doesn’t change that.
Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be
The more material you take, the less likely it is that your use will be a fair use. As a general rule, never: quote more than a few successive paragraphs from a book or article, take more than one chart or diagram, include an illustration or other artwork in a book or newsletter without the artist’s permission, or quote more than one or two lines from a poem.
Contrary to what many people believe, there is no absolute word limit on fair use. For example, copying 200 words from a work of 300 words wouldn’t be fair use. However, copying 2000 words from a work of 500,000 words might be fair. It all depends on the circumstances.
To preserve the free flow of information, authors have more leeway in using material from factual works (scholarly, technical, and scientific works) than to works of fancy such as novels, poems, and plays.
Rule 5: The Quality of the Material Used Is as Important as the Quantity
The more important the material is to the original work, the less likely your use of it will be considered a fair use.
In one famous case, The Nation magazine obtained a copy of Gerald Ford’s memoirs before their publication. In the magazine’s article about the memoirs, only 300 words from Ford’s 200,000-word manuscript were quoted verbatim. The Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the “heart of the book … the most interesting and moving parts of the entire manuscript,” and that pre-publication disclosure of this material would cut into value or sales of the book.
In determining whether your intended use of another author’s protected work constitutes a fair use the golden rule: Take from someone else only what you wouldn’t mind someone taking from you.
Copying From Unpublished Materials
When it comes to fair use, unpublished works are inherently different from published works. Publishing an author’s unpublished work before he or she has authorized it infringes upon the author’s right to decide when and whether the work will be made public.
Some courts in the past held that fair use never applies to unpublished material. However, in 1991 Congress amended the fair use provision in the Copyright Act to make clear that the fact that a work is unpublished weighs against fair use, but is not determinative in and of itself.
For more detailed information on fair use and copyrighted material, see Getting Permission: How to License & Clear Copyrighted Materials Online & Off, by Richard Stim (Nolo).” [1]

What cannot be protected by Copyright?
“For the making of books there is no end…”

What cannot be protected by copyright?

According to section 102 of Title 17 copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are described, explained, illustrated, or embodied.
In other words facts, ideas and slogans cannot be copyrighted; only the expression of ideas.  A live performance such as a lecture or a sermon or a concert cannot be copyrighted.  The video tape or audio tape of the concert is copyrighted as is a transcript of a lecture or sermon.
The quality of a work, its aesthetics, similarity to another work and even the amount of effort (or lack thereof) put into creating a work is irrelevant to copyright protection.  Copyright rewards originality, not effort.
A good example of similarity is the oft told tale of forbidden love.  It has been retold over and over again in a variety of scenarios as in Romeo & Juliet vis-à-vis West Side Story.  The theme is not copyrightable but the details reinvented with each new telling are.
A good example of effort viz a viz creativity is a telephone book.  A telephone book takes a great deal of effort to create but cannot be copyrighted because it is only a list of facts – names, addresses and phone numers.  On the other hand a subject arrangement of those same facts are copyrighted because there exists some creativity — minute though it may be — in the development of a subject listing of names, address and phone numbers.

 [2]

Fair Use Exemption
“For the making of books there is no end…”

Fair Use Exemption

The Fair Use Exemption is the primary defense used by individuals who wish to legally duplicate, display, derive, distribute or publicly perform copyrighted materials without the need to obtain permission from the copyright owner.  It is applied very broadly by the courts, yet the law itself is very brief.  Here it is in its entirety:
Sec. 107. – Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
These four factors are weighed by the courts to determine whether or not a work qualifies for fair use protection. There is no definitive yes or no to fair use.  For each situation and every circumstance all four factors must be weighed.  An unfavorable use in one factor does not automatically mean the work cannot be used.  As users you can analyze these four factors yourself to determine the likelihood of your use qualifying as fair use or not.  The risk to you is related to the amount of fines you might have to pay in the event you loose a law suit.  The key to reduced liability relates directly to your ability to present proof of a “good faith effort”.  To that end it is important that you keep a record of your fair use analysis to establish your “reasonable and good-faith” attempts to apply fair use.  If fair use does not apply, you must get permission from the copyright owner or don’t use the material.
Thanks to Dwayne Buttler and Kenneth Crews a Fair Use Checklist has been devised at the Copyright Management Center of Indiana University.  They have made this checklist available to anyone who desires to use it.  This tool has been designed “to help educators… focus on the circumstances that are important to the evaluation of fair use and [to provide] a means for recording your decision-making process”.  The checklist is derived from the four factors and from the judicial decisions interpreting copyright law.  In using the Fair Use checklist, check all the pertinent issues whether in favor of or opposed to fair use.  Sometimes, some issues will weigh more than others.
This and other fair use calculators are available online and can be consulted as an aide in ascertaining whether or not your use is a defensible fair use.  However, none of them should be consulted without first understanding the fair use factors themselves and how they relate to one another.
Let’s take a closer look.
The four fair use factors are
Purpose and character of the use of the work being copied,
The Nature of the work,
the Amount and substantiality of the portion being used in relation to the whole, and
the Effect of the use on the Market.
PURPOSE
The first factor to consider is the Purpose and character.  That is, what are you going to use it for?  Is it for educational use, news reporting or criticism?  The law specifically state’s “…the fair use of a copyrighted work, … by …teaching … scholarship, or research, is not an infringement of copyright.”  Educational use especially in a nonprofit institution weighs in favor of Fair Use.

Uses likely to favor Fair Use
      •       Nonprofit Educational
      •       Teaching
      •       Transforming
      •       Parody
      •       Criticism
      •       News reporting
      •       Restricted access

Uses likely to oppose Fair Use 
      •       Commercial 
      •       Entertainment
      •       Bad-faith behavior
      •       Denying credit to original author

If it is a commercial use, you need to consider whether or not you are duplicating or transforming the work.  The courts favor transformation of a work over exact duplication.  Are you making a derivative of the original or are you making something quite creative that is different than the original intended purpose?
Restricted access is particularly important when uploading material onto a Web page.  Restricting access to only your students and only for a limited period of time will weigh in favor of your freedom to use it.

NATURE
The next factor to weigh is the Nature of the work.  The more creative and artistic the original the less favorable it is to Fair Use.  Also unpublished works are less favorable than published works.  Facts cannot be copyrighted so the more factual the copyrighted work the greater the work favors Fair use.

Uses likely to favor Fair Use
      •       Factual
      •       Nonfiction
      •       Important to educational objectives
      •       Published
      •       Out of print

Uses likely to oppose Fair Use
      •       Creative (music, poetry, play scripts, fictional novels, short stories, paintings and the like) 
      •       Fictional
      •       Artistic
      •       Unpublished

AMOUNT
How much of the work is being copied?  A small percentage of the work in relation to the whole will find favor with Fair Use, but only if that small percentage is not the heart of the work.

Uses likely to favor Fair Use
      •       Small percentage
      •       Portion not central or significant to entire work
      •       Portion appropriate for educational objectives

Uses likely to oppose Fair Use
      •       Substantial in proportion to the whole
      •       Heart of the work

Here are some examples explaining the “heart of the work”.  The famous segment of the I Love Lucy show in which Lucy is working in the chocolate factory is a classic scene and worth a fortune to the copyright owners.  So although it is only a few minutes out of the whole episode it is the heart of not only that particular episode but of the entire Lucy show and if you want to use it you must pay a fortune for it.  The chariot race from Ben Hur again a very small percentage of the whole movie but it has come to be symbolic of the whole and using it would weigh against fair use.

MARKET EFFECT
Market Effect is linked closely with Purpose.  If your purpose is commercial than market effect is presumed.  Many works are being marketed to the academic community and it is being argued that even educational uses have direct adverse market consequences and so duplicating these materials maybe unfavorable to Fair Use.
Harm to the potential market must also be considered.  It does not matter that a market does not currently exist only that it could exist and be hurt.

Uses likely to favor Fair Use
      •       Does not hurt the current market or the potential market (does not compete in sales of the original) 
      •       Copy is not a substitute for the original
      •       Limited copies made
      •       Copy is not for sale or widely distributed 
      •       Copy is not published or posted online 
      •       No similar product on the market
      •       Original is lawfully acquired
      •       Lack of licensing mechanism 
      •       Parody – has different market
      •       Cannot get permission (efforts must be documented)

Uses likely to oppose Fair Use
      •       Hurts the market or POTENTIALLY hurts the market (competes in sales of the original) 
      •       Copy can substitute for the original
      •       Numerous copies made
      •       Work is widely distributed  or electronically made available to the world
      •       Repeated or long-term use
      •       Affordable permission available
      •       Reasonable licensing available

Remember all four factors apply.  A negative mark in one area does not mean Fair Use does not apply.  On the other hand one positive mark in favor of Fair Use does not mean Fair Use does apply.  You will discover when you fill out your checklist that some items tend to weigh more heavily than others and sometimes they negate each other.  For instance, it’s a small portion but it’s the heart of the work.   And although the courts have said that all four factors are equal, the reality is that market effect weighs more heavily than any of the others.

So, is your use Fair Use?  You’re asking the wrong question.  Rather you must ask “In good faith is it likely to favor fair use?  By evaluating these four factors, the best you can hope for is to demonstrate a “reasonable and good faith effort” for a favorable fair use defense.  A definite “Yes” or “No” to fair use can only be determined by the courts.  If you get sued and your use is found to be unfavorable to fair use and you cannot demonstrate a “good faith effort” in applying the four fair use factors, your fines will be the highest allowed by law ($30,000 per incident).

However, if you can demonstrate a “good faith effort” in applying the four fair use factors and you get sued and your use is found unfavorable your fines will be minimal ($300 maximum fine).   It may even be that you won’t be fined at all (this is only true for employees or agents of nonprofit educational institutions, libraries, or archives acting within the scope of employment).  If you as an educator can demonstrate that you made those copies in good faith believing that yours was fair use, you may not have to pay a fine at all even if the courts decide it is NOT fair use.

One other aspect to keep in mind is that it is illegal to circumvent any technological controls protecting access to a work even if the work protected by these measures qualify for fair use.

So what happens when fair use does not apply?  Get Permission or don’t use it.
For more information about Fair Use see the Library of Congress Fact Sheet (FL 102) “Fair Use” and Circular 21 “Reproduction of Copyrighted Works by Educators and Librarians”.

There is also the First Sale Doctrine from section 109a which permits the sale or disposal of a copy lawfully obtained.
“Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”

This is the part of the copyright law that says if you legally obtain a copyrighted item you may sell it or give it as a gift or tear it up into little pieces, but it does not permit the duplication of that item. [3]

Quotations with “ xxx” and Indentations
I have also found that many people do not realised that a Quotation can be indicated with the use if indenting the portion to be quoted without the use of the quotation marks. Thus I include a quotation here:

Punctuating and Indenting Quotations

For the most part, you must reproduce the spelling, capitalization, and internal punctuation of the original exactly.

The following alterations are acceptable:

Changing the closing punctuation

You may alter the closing punctuation of a quotation in order to incorporate it into a sentence of your own:

“Books are not life,” Lawrence emphasized.

Commas and periods go inside the closing quotation marks; the other punctuation marks go outside.

Lawrence insisted that books “are not life”; however, he wrote exultantly about the power of the novel.

Why does Lawrence need to point out that “Books are not life”?

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Using the slash when quoting poetry

When quoting lines of poetry up to three lines long (which are not indented, see Indenting quotations), separate one line of poetry from another with a slash mark (see examples in Incorporating Quotations into Sentences).

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Using Ellipsis Points for Omitted Material

If for the sake of brevity you wish to omit material from a quoted passage, use ellipsis points (three spaced periods) to indicate the omission.

(See this sample paragraph. The writer quoted only those portions of the original sentences that related to the point of the analysis.)


Using Square Brackets when Altering Material

When quoting, you may alter grammatical forms such as the tense of a verb or the person of a pronoun so that the quotation conforms grammatically to your own prose; indicate these alterations by placing square brackets around the changed form.

In the following quotation “her” replaces the “your” of the original so that the quote fits the point of view of the paper (third person):

When he hears Cordelia’s answer, Lear seems surprised, but not dumbfounded. He advises her to “mend [her] speech a little.” He had expected her to praise him the most; but compared to her sisters’, her remarks seem almost insulting (1.1.95).

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Indenting Quotations

Prose or verse quotations less than four lines long are not indented. For quotations of this length, use the patterns described above.

Indent “longer” quotations in a block about ten spaces in from the left margin; when a quotation is indented, quotation marks are not used.

The MLA Handbook (1995) recommends that indented quotations be double-spaced, but many instructors prefer them single-spaced. The meaning of “longer” varies slightly from one style system to another, but a general rule is to indent quotations that are more than two (or three) lines of verse or three (or four) lines of prose.

Indent dialogue between characters in a play. Place the speaker’s name before the speech quoted:

   CAESAR:  Et tu, Brute!  Then, fall, Caesar!

CINNA:   Liberty!  Freedom!  Tyranny is dead! (3.1.77-78)

Copy and Paste and Plagiarism
This topic is covered with this link [4]

REFERENCE
[1] Fair Use and Copyright: http://www.nolo.com/legal-encyclopedia/fair-use-rule-copyright-material-30100.html
[2] What cannot be copyright: http://www2.masters.edu/DeptPageNew.asp?PageID=1736
[3] Fair Use:http://www2.masters.edu/DeptPageNew.asp?PageID=1736
[4] Copy and Paste:https://docs.google.com/document/d/1G2UMXNDZJ899mIhGhZmRWKKls0FvaVmJonj4RR1oO_s/edit?hl=en_GB
[5] Quote by Indenting: http://writing.wisc.edu/Handbook/QuoLitPunctuating.html

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