Fair Use Hypothetical C

The Fair Use Doctrine (17 USCA, Section 107) states that:

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.  

Based upon these guidelines, Woo could be found to be in violation of the fair use doctrine:

Purpose:

Ms. Woo is not making copies for commercial profit for herself nor for the school. She is attempting to quickly and efficiently compile resources for her class. Woo is not in violation of this section

Nature:

It is assumed that Woo is compiling factual information for her class. It is less of a violation to compile factual, published information rather than "creative" or "imaginative" fictional works. Woo is probably not in violation of this section.

Amount:

Woo has copied 25 articles 11 times each. This would probably be considered excessive, as a web site could be one page, or in the case of certain public school law class web sites, forty pages! Woo is likely in violation of this section.

Effect on Market:

More facts are needed to accurately assess this section. If the information is on sites free-of-charge and people are invited to use the material, Woo is not in violation of this section. If the sites contain material reprinted by an author on the internet, this is a violation. If Woo paid a one-time charge, as opposed to all the students paying the charge, to access the site, this is a clear violation.

Other questions:

• If Woo charges the students for her time, this would be a violation, as this would be copying the material to make a profit. She is permitted to charge the students for the cost of the copies (see discussion with Cynthia Helms, below.)
• Woo's copying for a for-profit school probably is not in violation of the section, as she is not copying the material for profit but for educational purposes.

After reading the materials and completing this assignment, I talked with Cynthia Helms, the head librarian of Centennial High School, about the case. Mrs. Helms is very aware of the doctrine of fair use and was very conversant of the four tests. She is currently preparing an extensive presentation on the issues involved in fair use, especially the four tests. She is rather watchful of copyright violations on her watch, as many people can get into trouble if anyone chooses to initiate litigation against violaters, including her, other librarian workers, involved teacher(s), the principal, the school board, among others.

She informed me that:

• if teachers have the time, they should write for permission to use materials.
• Woo could copy the materials for face-to-face teaching but is forbidden to make an anthology of works.
• Teachers have a little more leeway with fair use providing they are using the materials in a "teachable moment" and the time spent writing and waiting for permission will make the information untimely for class use.
• Woo can charge for cost, but not for her own time.