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U.S. copyright law protects creative work from being copied, altered, distributed, or performed without the permission of the owner and/or creator. It also recognizes that students, teachers, and researchers must be able to use and adapt the copyrighted work of others in scholarship. Title 17 Section 107, 鈥淟imitations on Exclusive rights –Fair Use,鈥� states:

鈥渢he 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鈥�
(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.鈥� (17 USC 107)

The law and 乐播传媒 College Copyright Policy require you to make, and if necessary defend, a reasoned judgment about fair use of others鈥� work. This document is intended to help you make this judgment as you prepare a work for publication in SCARAB, the college鈥檚 mechanism for storing and distributing research and scholarship.

How does the concept of 鈥渇air use鈥� affect your thesis, paper, or presentation?

If you create work a) for a course at 乐播传媒, including an independent study or a thesis tutorial, and b) that work will never be seen or distributed outside the course, you don鈥檛 need to be too concerned. It is unlikely that your paper, project, or presentation is a serious infringement of copyright. No matter what form it might take, your coursework is considered to be for 鈥渘onprofit educational purposes,鈥� and if you don鈥檛 give away copies or post them on the Internet, your work has very little chance of affecting the potential market for the original.

If you create an Honors Thesis or any other work for a course at 乐播传媒 and include it in the SCARAB repository, you must carefully consider whether your use of others鈥� work is 鈥渇air鈥� (as legally defined above) or whether it infringes on the rights of the copyright owner. Copyright law does not give exact rules or definitions of what fair means, but it does give guidance in the form of a four-factor test. The four factors, taken as a whole, should lean toward 鈥渇air鈥� in your analysis, and the fourth factor should always lean toward 鈥渇air.鈥澛� See the for examples.

(Factor 1) Purpose and character: Is your work a piece of scholarship, or is it for commercial purposes? If the work you are submitting is your thesis or a product of your course work at 乐播传媒, it is always considered to be educational for the purposes of SCARAB, so in those cases factor one leans toward fair use. If the work you are submitting was created by you outside class (for example as part of a project you are doing in the community), this factor may not be as clear cut, but may still lean towards 鈥渇air.鈥�

(Factor 2) Nature of the copyrighted work: The word 鈥渘ature,鈥� can mean many things in this case: Is the work [A] published or [B] unpublished? Is it [A] more than 90 years old or is it [B] newer? Is it [A] a scientific fact, or [B] a work of art? Is it [A] common public knowledge or [B] information created for sale or license to individual users? In all these cases, answer [A] leans toward fair use. Answer [B] leans away.

(Factor 3) The amount and substantiality of the portion used: The best guidance on 鈥渁mount鈥� is to use as little of someone else鈥檚 copyrighted work as you need to support your scholarship. The more you use, the less likely it is that your use is fair. With regard to 鈥渟ubstantiality,鈥� consider whether the reproduction or distribution of your work means that no one will need or want to consult the original. If it does, it is less likely that your use is fair.

(Factor 4) Effect on the market or value of the work: Even if the other three factors point to 鈥渇air use,鈥� you should carefully consider whether publication and distribution of your work might take away the value of the original work. If you conclude that your use of someone else鈥檚 work will undercut its value in the marketplace, you should conclude that the use is not 鈥渇air鈥� and you should limit the amount or quality of the material you use until this factor leans toward 鈥渇air.鈥� Here are some examples. If a work is unpublished, your quotation or use of even a tiny part might prevent it from ever being published. If you are using textbook worksheets or television ratings data that are created and packaged solely to be sold to subscribers, any distribution on your part might prevent the owners from selling their work. Museums support their collections by licensing use of photographs of their art and audio tours of their collections, so distributing or publishing your copy of these materials may directly affect the market for that museum鈥檚 services. On the other hand, the inclusion of an entire video of a television commercial in your final submission might be the only way that your readers will ever gain access to the thing you have seen, and your inclusion or redistribution will not have an effect on either the market for the product or the market for advertising.

What should you do?
鈥� Keep researching and writing!
鈥� As you structure your paper, be sure to talk with your advisor about other people鈥檚 work that you would like to include in your project.
鈥� If you use special material, such as a psychological scale, make sure that you have permission to quote, reproduce or otherwise duplicate any of its content before you do so.
鈥� Use only what you need.
鈥� When possible, provide a link or citation for other people鈥檚 works rather than reproduce them.
鈥� If you have doubts, ask yourself if there is a different work you could use whose use would be fair.
鈥� You may request permission of the copyright owner to reproduce the work in question. This may be a time-consuming and costly process, particularly if you are reproducing a work of art, but it is always possible to ask. Library staff members can help you identify who the owner is.
鈥� If you need to include something in excess of what you determine to be 鈥渇air use,鈥� consider removing it at the time you upload your final copy into SCARAB. If that鈥檚 not possible, you will need to restrict access.

There are many resources to help you through this analysis. At 乐播传媒, we often refer writers to the 聽from the University of Texas, which is detailed enough to be thorough, but written in plain language. Columbia University Libraries provides a 聽which includes examples of the four factors. At 乐播传媒, see Chris Schiff, Music and Arts Librarian, 786-6274, cschiff@bates.edu.

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^{Copyright for theses, papers, and presentations submitted to SCARAB,聽Reviewed by: Christopher Schiff, February, 2019}