What important steps should you perform to ensure that use of a copyright-protected work fall under fair use?

Answer 1

In the USA, 17 U.S.C. § 107 states:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The first step would be to determine what copyright exists and whether it covers the portion of the work you intend to use. If not, then the whole question is moot.

Once you have established that what you want to use is indeed covered by copyright, you need to examine the 4 issues raised in the law cited above. You need to determine the intent of the use of the portion of the work. Is it for

• criticism
• comment
• news reporting
• teaching (including multiple copies for classroom use)
• scholarship
• research

Note that you still have to be very careful when it comes to using copyrighted material for teaching. A teacher can't just pirate copies of a text or a piece of software instead of purchasing them for use by the class. On the other hand, a teacher can fire up a copy of Word to teach students how to use it or to illustrate how point-and-click works without having to pay Microsoft for the use of their product. If they turn around and use that same copy of Word to write letters to the parents of the students, then they had better have a license for the software!

You need to establish how much of the work you are using. Citing a paragraph from a book is usually OK. Quoting a whole chapter is usually not OK. Demonstrating one feature of a piece of software to illustrate a point in a presentation is usually OK. Using the software to run your presentation for a bunch of paid lectures probably would not be.

You need to establish whether you are using the work to make money without the permission of the copyright holder.

If your use of the product is preventing others from buying it because you are making it free for them to use, it's not going to be "fair use".

Although all this discussion is specific to US law, the concepts are at least close to the way the laws are applied in most other countries. Note that in a lot of countries they either have no "fair use" statutes on the books or turn a blind eye to people appropriating copyrighted products without paying for them. Even if you are not punished for this, it's still wrong.

The overarching question should be - am I cheating the copyright holder out of money they should be getting for this product?

Answer 2

If your use is not exempted in the law, you should get permission from the copyright holder.