- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
According to Simpson, the fair use defense is one of the most misunderstood aspects of the copyright law, when discussing copyright laws in the school systems (p. 39). Simpson says that there are 4 common misconceptions of fair use:
- Schools can copyright protected materials that they wish, because they are schools;
- Using materials is OK if you don’t make a profit
- Promoting someone’s work by distributing copies is justification for free use
- Materials used “for the good of the kids” absolve one of copyright liability.
It is important for schools to carefully consider the rights of the creator before using those materials. Remember that fair use is a DEFENSE that can be used in court, and it is the educator’s job to prove that they did not break the fair use guidelines.
Simpson, C. (2005). Copyright for schools: A practical guide. (4th ed.). Worthington, Ohio: Linworth Publishing, Inc.
US Copyright Office (2006). Fairuse. Retrieved October 12, 2008 from http://www.copyright.gov/fls/fl102.html.