Examining the four tests one must take into account for material usage...

1. FAIR USE OF
COPYRIGHT LAW
By Brian Hail

2. FAIR USE IS DEFINED AS THE LIMITATION AND EXCEPTION TO
THE EXCLUSIVE RIGHT GRANTED BY COPYRIGHT LAW TO
THE AUTHOR OF A CREATIVE WORK…
Even though educators may use many materials under ‘Fair Use’, not all of them will be
acceptable. The following four tests examine what can and cannot be used when
considering material for use.

3. Whether it be for non-profit or commercial uses, material may be used if it is for
learning purposes. Examples are:
- Students may use quotes in their papers or multimedia
productions (with proper citation).
- Educators may handout several copies of instructional
material.
- Researchers may use other scientists information in their
work (with proper citation).
- People may use work as long as it is transformative.

4. The law states that one must carefully
examine the work they are wishing to use.
Published material gains favor when
dealing with ‘Fair Use’ because they are
the original creators of the work. This does
not mean unpublished material can be
taken regardless of the law. The following
two tests will examine which unpublished
materials can and cannot be used.
The law favors creative work over non-original
pieces; therefore, fiction material is favored as
opposed to non-fiction. In Layman’s terms:
- An elegant piece of art would be
harder to use in a person’s work as
opposed to a plain image.
- The more work someone put into their
creation, the harder it will be for
someone to use it in theirs.

5. AMOUNTS
Quantitative amounts that can be used:
Unlike the proceeding example, not all
works can be used in the classroom if it
does not pertain to research. An instructor
may not use 25% + of an article as a
handout for their students. The educator
must educate themselves on the subject
and create instruction for themselves.
Sometimes less is more.
Qualitative amounts that can be used:
An entire article may be used as a
source for research, for it is a reference to
heighten the understanding of the topic.
Any amount of work may be used for
education if it is solely to give experience
to the author and readers.

6. EFFECT
The final test is the ‘effect’ test which examines the outcome of the use of the material.
If the educator uses work in a way that the
author will lose on potential sales, the ‘Fair
Use’ law states that the material may not
be used. The person using the work must
find a way to implement said material into
their use without taking profits away from
the author.
Example:
If you created a supplemental
workbook and someone made several
copies of your work for their use, you
would be losing on several potential
sales. This test is mainly ethical.

7. REMEMBER: ONE MUST PASS ALL FOUR
(4) TESTS FOR THE WORK TO BE
APPLICABLE. HERE IS A CHECKLIST:
Does it pass these tests?
Purpose O
Nature O
Amount O
Effect O

8. A FEW KEY POINTS REGARDING FAIR USE
The following people possess Copyrights:
Authors (books, articles, even emails)
Artists (cartoonists, graphic design, etc)
Photographers
Publishers
If you plan to use an author’s work
without consent (only if it fails more than
one test), you have one “freebie”.
Otherwise, you must contact the author
for permission to use their work. Make
sure to get their permission in writing in
case they forget and accuse you of
stealing.

9. Imagine you are a professor who must give your students a standardized
test. Your boss gives you supplemental study material to hand out to your
students. You find out that this material has been photocopied from one
booklet for 5 years. Should you agree to pass out the material? Or, should
you create your own? Would you buy new material for your student?
My question to you is “How would you handle this situation”?
Remember all four tests, and please implement them into your
instructional materials.
SCENARIO TIME