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Evidence Based Nursing: Fair Use

Selected Case Law

Association for Information Media and Equipment v. The Regents of the University of California, Dist. Court, CD California 2011

The plaintiff, an educational video producer, is suing the defendants for UCLA's practice of streaming DVDs on e-reserves.


Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 - Dist. Court, CD California 2006

Was the Google's creation of thumbnails, indexing of them, linking them to the plaintiff's sites, and distributing them within search results an infringement?


Field v. Google Inc., 412 F. Supp. 2d 1106 - Dist. Court, D. Nevada 2006

Was Google's caching of the plaintiff's webpages and making these images available in its search reseults an infringement upon the plaintiff's exclusive right to reproduce his own copyrighted works?


Bill Graham Archives v. Dorling Kindersley Ltd., 448 F. 3d 605 - Court of Appeals, 2nd Circuit 2006

The defendant published seven reduced size reproductions of poster images owned by the plaintiff in a 480-page biography of the Grateful Dead.


Princeton University Press v. Michigan Document Services, Inc., 99 F. 3d 1381 - Court of Appeals, 6th Circuit 1996

Similar to the Kinko's case below, this case involved a commercial copy shop assembling and selling coursepacks made up orf excerpts from copyrighted works, without obtaining opermission from the publishers.


American Geophysical v. Texaco, Inc., 60 F.3d 913 - Court of Appeals, 2nd Circuit 1994

Was the copying of journal articles by a member of a for-profit corporation's research team, on behalf of the corporation, a fair use?


Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 - District Court, S.D. New York 1991

Was Kinko's copying of book excerpts and assembling coursepacks, without obtaining permission from the publishers, a fair use?


 

Fair Use

What Is Fair Use?

U.S. Copyright Law (Title 17) grants authors of creative works the exclusive rights of reproduction, adaptation, publication, performance and display in Section 106.

Sections 107 through 112 set forth limitations on these exclusive rights outlined in Section 106. Of primary interest to educators is Section 107, which sets forth the Fair Use limitation on the exclusive rights of the copyright holder.

Sometimes it is mistakenly believed that any educational use is a fair use. While there is often disagreement over what is a fair use and what is not a fair use, there is no disagreement among those familiar with U.S. Copyright Law that this is not the case; an educational use does not mean a fair use.

However Section 107 does provide for fair uses within the educational setting. The statute describes four factors which must all be taken into consideration when determining whether a use is a fair use. The language used in the language is vague and imprecise, which is why fair use determinations must be made for each individual use. It is also why the fair use factors bring about so much debate.


Following is the text from Section 107:

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.


CIS Fair Use Q&A

Digital Copyright Slider

Works that are in the public domain are not protected by copyright, and therefore these materials may be reproduced in physical or digital form without limitations and without restrictions. Michael Brewer and the ALA Office for Information Technology Policy created this terrific digital slider for determining whether a book is in the public domain, based on the year of publication.