Regarding the question below, I'd like to remind people that making a
fair use determination requires the consideration of - at a minimum -
the four factors of fair use. Let's go through that process here.
Factor one: purpose of the use
As the writer suggested just because the use is a nonprofit use does
not mean it is automatically fair. But this use is not for-profit and
does have an educational focus. A truly "pure" non-profit
educational use would be a real class or course at a real non-profit
educational institution. We don't have that here but we do have a
socially beneficial use that advances learning.
I suggest that the first factor is fair.
Factor two: nature of the publication
The writer tells us that the swim parents guide is a published document
that appeared in some book. It is a non-fiction work.
Thus, factor 2 also leans to the fair side.
Factor three: amount of the publication/work used
The answer seems easy at first - the whole thing is being copied. But
if it appeared in another publication, perhaps it was a small part of
that larger publication. Also, I would argue that when you have a work
that is the "top ten" or the "ten reasons" or the "ten commandments," a
reasonable use is to use the entire thing. How socially beneficial
would it be to use just 1 or 2 of the ten commandments for swim parents?
I would argue that even though one might interpret (correctly or
incorrectly) that the entire work is being used, factor 3 is still
fair.
Factor four: effect on the market for the work
This is a difficult factor to assess because we don't know where the
work came from. Perhaps if the publication could be identified, one
might be able to locate the copyright holder and ask permission to see
if the use is okay and if the copyright holder would like to charge a
royalty. But be careful don't use circular reasoning to suggest that
there may be a market effect because the copyright holder could charge a
royalty fee. And if there is a market effect, is it a big one?
My thinking is that even if there is a market effect, it's a small one.
And the other factors suggest the use is fair.
As you can see, I think this is a fair use. It would be great to find
out where the ten c's came from so proper attribution can be given.
Certainly we must assume that the work is protected by copyright so the
copies should be stamped with a legend "this work may be protected by
copyright" or some other clear concise copyright note.
If the non-profit swim group decides to use this publication every
year, what then? Many many copies over a period of time could build up
to a bigger market effect. The group will need to consider if, each
year, they feel that the continued use is still fair. Assuming you
never find the copyright holder, could a member of the swim board
develop their own set of guidelines (not plagiarized!!) that could serve
as a replacement?
These are my thought and I hope they are helpful.
Carrie Russell
Date: Wed, 4 May 2005 09:14:41 -0400
From: Rachelle Wynkoop <rwynkoop@ALGONAC.K12.MI.US>
Subject: copyright and fair use
I serve on a non-profit board (swim club) and had a copyright issue
come up
last night. The board would like to put copies of a guideline "The
Ten
Commandments for Swim Parents" in the registration packet. The copy
does
have a person's name and the source the information was adopted from.
I
expressed concern that this does not put us in copyright compliance.
The
information was copied from a book and we need to request permission to
copy
and distribute. Of course, there is a lawyer on the board who assured
everyone that she could make it copyright compliant under fair use.
My
interpretation of fair use does not apply to this situation. I believe
the
contention is because we are non-profit, and not making profit from
the
distribution, that we are ok. I disagree. I believe that we are
required
to obtain permission. Thoughts? Suggested resources?
Rachelle Wynkoop
Algonac High School Media Specialist
Algonac, MI 48001
rwynkoop@algonac.k12.mi.us
Carrie Russell, Copyright Specialist
American Library Association
Office for Information Technology Policy
1301 Pennsylvania Avenue, NW Suite 403
Washington, DC 20004-1701
(202)628-8421
crussell@alawash.org
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