Reprinted with permission of Copyrightlaws.com

by Lesley Ellen Harris

Fair use is one of the most misunderstood principles in the U.S. Copyright Act. It causes frustration, uncertainty and controversy. However, the more you know about fair use, the more useful it may be useful to you. Did you know …

  • Fair use is only recently part of the actual U.S. Copyright Act. While it’s a doctrine created by courts in the nineteenth century, it wasn’t until 1976 that fair use became codified and set out in the Copyright Act.
  • Many who apply fair use complain that it’s ambiguous and should be more specific to fact situations. Fair use is intentionally open and flexible, and its language allows you to apply the doctrine to your own specific fact situations.
  • Fair use may be applied by individuals or corporations, by commercial and noncommercial entities, and in for-profit and nonprofit situations.
  • Fair use is never a certain thing unless a judge in a court of law makes that determination. In practice this means that getting comfortable with fair use is important. You need to be able to make a judgment call as to whether fair use applies to your use of copyright-protected content.
  • Fair use requires a risk analysis. You must understand any copyright risks involved when applying fair use to your situations and generally minimize your risks of unauthorized uses of copyright-protected materials.
  • The application of fair use always depends on the facts of your situation and how your facts fit within the four fair use factors set out in the U.S. Copyright Act.

The factors are:

  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
  4. The effect of the use upon the potential market for or value of the copyrighted work

U.S. Copyright Office Fair Use Index

The U.S. Copyright Office hosts a Fair Use Index, which is a helpful database for understanding fair use. You can search the Index by category (e.g., literary, artistic, musical work) and by your type of use (e.g., education/scholarship/research, parody/satire, photograph, internet/digitization.)

The Index tracks court decisions at various court levels, but it isn’t intended to be a comprehensive archive of all fair use decisions ever made. It’s designed for both and nonlawyers and is user-friendly. The Index sets out the:

  • Name of the case
  • Court
  • Jurisdiction
  • Year of the decision
  • Whether fair use was found by the court

You can click on the case name/citation for a summary of the case that includes the key facts, issue, outcome and more information about the decision.

Fair Use and Fair Dealing

Fair use is not a universal provision found in all copyright laws around the world. Fair use originated in the U.S. from the 1841 court case of Folsom v. Marsh. This case set out the four fair use factors that exist today and that were codified in the U.S. Copyright Act of 1976, as set out above.

Fair Dealing in Canada

There is no fair use provision in the Canadian Copyright Act. There is, however, a fair dealing provision for specific purposes: research, private study, education, parody, satire, criticism, review and news reporting.

If the use falls within one of these purposes, then you must determine fairness by applying your facts to the following factors set out in a Supreme Court of Canada case:

  • The purpose of the dealing
  • The character of the dealing
  • The amount of the dealing
  • Alternatives to the dealing
  • The nature of the work
  • The effect of the dealing on the work
  • Any other factors that may help a court decide whether the dealing was fair.

In the 2012 amendments to the Canadian Copyright Act, two new purposes were added to fair dealing: parody and education.

See Available Courses Via CopyrightLaws.com

 

Photo credit: Mike Seyfang, via Flickr, CC BY 2.0.

About the Author

Lesley Ellen Harris, JD, is the founder and CEO of Copyrightlaws.com. Lesley is a copyright consultant, published author, copyright blogger and educator. Her areas of expertise include U.S. and Canadian copyright law, international copyright law, and licensing digital content. (From CopyrightLaws.com)

by David D. Esselstrom

In 1961, my eldest brother, Keith, was discharged from the Army’s 101st Airborne division. From his last duty station in Okinawa, he returned to La Crescenta, California, with a third-degree black belt in Karate, a Samurai sword with three-foot blade, and the conviction that Gautama Buddha, not Jesus Christ, had had it right. I remember watching him unpack his duffel bag. He pulled out a bright red carton of Pall Mall cigarettes, a bayonet, and a packet of books, among them Alan Watts’ The Way of Zen and Jack Kerouac’s The Dharma Bums

My eldest brother, eight and a half years older than I, had it right, in my eyes. He held my bike when I learned to ride and laughed as I kept yelling for him to “let go, let go, I can do it, let go.” He was laughing because he had let go quite some time before. He took me fishing in the streams of the San Gabriel Mountains, taught me how to work a salmon egg onto a hook. He showed me how to step through and string a bow, how to rest my eyes on the target, let slip the arrow and feel the arc of its flight out from the bow, up through air, and into the cardboard box stuffed with newspapers. 

We had our first discussion about religion when I was twelve. I more or less argued Pascal’s Wager—risking delusion is a better bet than risking damnation. Keith ridiculed the position as being beneath his dignity. I felt embarrassed that it was not beneath my own. Looking at it through Keith’s eyes, Christianity seemed a religion for wimps and cowards, a refuge of the weak and afraid. Mostly because of Keith, I began, at thirteen, working my way through The Way of Zen. I remember reaching what I thought at the time was a state of satori early one morning as I tossed copies of the Los Angeles Examiner to the second-floor apartments of a building in Montrose.

I discovered later that Keith and I were typical members of a restless generation, young people coming of age in the sixties. The fifties began in 1948 with the advent of commercial television and ended with the death of John Kennedy in ’63. The sixties started—in earnest—in 1964 with the Beatles’ first tour of the U.S. An interest in the religion and philosophy of Asia that flowered in the forties and fifties in the work of Kerouac and Allen Ginsberg as a garden of aesthetic inspiration took root in the sixties in the soil of America’s discontented youth, as much a reaction against everything domestic as an embracing of things mysterious, exotic, and other. Things Eastern, or quasi-Eastern, became part of our cultural landscape—from Zen to Transcendental Meditation, from Hare Krishna to the Bagwan, from being Blissed-out with the Guru Mahara Ji to “getting it” with Ehard Seminars Training. 

We can think of America’s flirtation with the philosophies and religions from Asia as an encounter with the “other.” But we can’t really understand the nature of this encounter nor what results from it until we see that all such encounters are problematic.


There are two ways of looking at “the other.” Sam Keen has noted that throughout history we have often demonized the other, seeing what is different as something that is frightening and therefore must be strictly controlled or ruthlessly abolished. In wartime, the enemy is conceived of as evil, his motives base, his actions reprehensible. Our actions, on the other hand, are seen as necessary, as lesser evils needed to prevent greater ones. There is always a qualitative difference between us and them. When “the other” is closer to us we deal with it in a less brutal, but still brutalizing, fashion. If we dismiss it—usually out of fear or ignorance or arrogance, although the three are often the same—we then ghettoize the other, marginalizing a people, taking away the voice of a culture by ignoring it. If we do not fear it, we pretend to embrace it, or rather absorb the other, using it, making differences commodities that can be worn or heard or watched or, in some other way, consumed. 

The second way of looking at “the other” is to give it unwarranted value. This is the “greener grass” phenomenon. What is over there must be better than what is over here. Chekov’s “Three Sisters” want to get to Moscow. Everything will be better in Moscow. Huck Finn takes off for the west where a man can breathe. I always thought Virginia and Sharon who lived across the driveway from me in the fifties had the better toys. Keith, my eldest brother, thought the quieting of the mind and body before doing battle on the tatami mats with an opponent was better discipline than quiet reflection on a passage of the Bible. 

An anecdote from the sixties might help illustrate these two perspectives. A dinner table argument between a teenager and her father began when the young woman said she admired a friend who had taken up the study of Transcendental Meditation. The father was a first confused, then incensed. Her point was that the friend had found something of spiritual value in his practice. The father’s irritation was with anyone finding anything of value from a culture where indoor plumbing was a rarity. 

The problem is that both of these ways of looking at and dealing with the other—to denigrate or to glorify—are counter-productive. Dismissal leads to loss. Not only is marginalization—whether cultural, economic, or social—unjust to those people who are marginalized, but it costs those people doing the marginalizing as well. The father in the preceding anecdote has trouble valuing any culture he cannot measure by his own yardstick of material wellbeing. Because he can’t or won’t do so, he is cut off from interacting with his daughter. He cannot understand her fascination with emotional or spiritual values that have little to do with material things.

But what about the other side? Glorification of the other. Is this dangerous as well? I think it is. And my brother and myself are cases in point. If we value something before we understand it, we run the risk of chipping away at that value as our understanding grows, a paradoxical but not uncommon phenomenon. I’m reminded of a young woman with whom I went to high school. I was honored by her friendship since she was the smartest student in our school, a delightful conversationalist, and a brilliant actress. She went on to a college in Southern California because of her admiration for the professors there in the English and Theater Arts departments. Two years later when I asked her how things were going, she seemed a bit disappointed. She said she’d found out something quite disconcerting about her professors. “What’s that?” I asked. “They’re human,” she said. “Familiarity breeds contempt” does not tell us something about the situation; it tells us something about ourselves. 

Here’s another illustration. When we are children, “the other” is the world of the grown-ups. Bruno Bettelheim maintains that for the child, the adult world is frightening because it is, in fact, unimaginable. The difference between the two realms is qualitative. Imagine how different our lives would be if we really were, as adults, as fearless, as carefree, as certain as we imagined adulthood to be when we were children. One of the more depressing things you can tell a young person is “These are the best years of your life.” 

Worse than the risk of disillusionment, however, is what happens to our relationship to what is in our own backyard. To glorify the foreign often involves the denigration of the domestic. It’s not only a question of comparative values. Selection always involves value judgments. How we choose to spend our time indicates what we value. But the real danger is one of dynamics rather than status. When one chooses to value “the other ” what often happens is that one’s understanding of one’s own cultural heritage freezes, stops, ceases to grow—may indeed begin to whither. 

For example, my growing understanding of the religious tradition in which I was raised stopped at about my junior year of high school. I thought I understood it, and what I thought I understood, I didn’t like. An understanding that is not growing, that is not dynamic, withers. Luckily for me, my understanding, my relationship with my own tradition, began to show signs of life in the late seventies because of my teaching. I was offering a few courses through Marylhurst college in Lake Oswego, Oregon—I believe the name when I was there was Marylhurst Center for Life-long Learning. Sister Marilyn Guldan, head of the Humanities Division, developed a correspondence/brief residency course on “The Convergence of East-West Thought.” She threw a little work to this hungry adjunct instructor by letting me team-teach the course with her. Initially, I was shocked. I believed that there was no convergence between what I thought I knew of Eastern thought and what I thought I knew of Western thought. What I discovered is that I didn’t know either, and that I had used my exposure to the one as an excuse to stop thinking about both. 

I learned that not only is there a rich tradition of Christian mysticism, but that Christian scholars had long been in dialogue with their counterparts in Japan and India. Later, when I was teaching at the University of Portland, Sister Joan Salfield and I formed the core of a weekly meditation group. My brother never had this opportunity to re-examine what he thought he had learned about others and about himself. The danger is that in glorifying the foreign—the exotic, the different—we marginalize ourselves and our own traditions. 

Another example is an experience that occurred to a friend of mine who grew up outside of any specific religious tradition. In a college course which required students to observe and report on religious services outside their own, he chose to attend a Christian service at a Protestant evangelical church. Noting that his peers were reporting on their experiences in positive and respectful terms, he did the same. His report was deemed unacceptable. When he rewrote the report and placed his observations in more negative terms, his efforts were praised, his insight encouraged. The graduate students reacting to my friend’s efforts remind me of my brother and his inability to see his own tradition as valuable, as worthy of study, as something that he perhaps does not yet fully understand. 

We marginalize that which we do not understand, and often that which we think we do. Some certainties make arguments possible; others foreclose all discussion. We can reach agreement if we both affirm that agreement is possible. And, as Kenneth Burke tells us, that is only possible if both of us are willing to change, if both of us are willing to admit that our own certainties are something less than absolute. Believing, because of fear or anger or ignorance, that you know enough about other people to warrant their separation—as with the Americans of Japanese descent interned during WW II—is needlessly damaging to our society. Believing that you know all you need to about yourself and your world is an unnecessary amputation of the self. 

Therefore, if we don’t want to push others away nor do we want to deny ourselves and our heritage, how can we be accepting of other traditions without adhering to them, how can we be respectful of other points of view while remaining steadfast and true to our own? This is one of those questions that can be answered by turning to the examples given us in literature. The answer is that the question cannot be viewed as a matter of stance—where do I stand? what do I believe? what do I know?—but as a matter of dynamics—what can I learn? where can the discussion lead? what are the opportunities for fuller appreciation of one tradition by way of the others? 

We marginalize that which we do not understand, and often that which we think we do.

Some writers have shown us that interest and respect need not be glorification. We can learn how this is done from the literature that explores the relationship between the other and ourselves without marginalizing either the other—or ourselves. From Forster’s Passage to India to Hesse’s Siddhartha to Huxley’s Island to Pirsig’s Zen and the Art of Motorcycle Maintenance, Western writers have been intrigued by the East, not so much as a substitute for their own traditions but as way of getting some distance from which to view and critique those traditions. 

But the critique itself is not Eastern but Western in nature and intent. This is the case because our writers—and others—in the current century have been looking for answers in the East to questions that can only be posed in the West. These are questions of identity and purpose, questions that—as I understand the major currents of thought in Hinduism and Buddhism—are unasked because they are unaskable from inside these traditions. Dr. D.T. Suzuki was criticized by those in his own tradition when, partly as a result of Alan Watts’ writing about Zen, he decided to speak to a Western audience. “The way that can speak its name is not the real way,” says the Tao te Ching.

Literature, as we know it in the West, is a production of human consciousness attempting through language to form, define, and explain the mystery of individual personhood. Literature then is both a culmination and a celebration of individual identity. Yet what fascinates Western writers about the East is the absence of the very dependence on identity that makes such questions possible. The problem for all of us is that identity in its own fulfillment doesn’t supply satisfaction. I know who I am and I know I’m not happy. The paradox is that we, in the West at least, want to know who we are and have happiness at the same time. In fact, the way we think of happiness, as a possession, underscores this paradox. Our own traditions have called the problem with this to our attention several times. “The first shall be last.” “Who loses her life shall gain it.”

The answer? It’s a matter of maintaining a healthy relationship. In our own tradition we are exhorted to love the other as we love ourselves, not less than, not more than, and not in place of. It is in our dynamic relationship with others that we form and define ourselves. To shorten that relationship on either end is deadening; to keep it open is frightening because it leads to a richer, deeper life. 

Photo credit: Eddy Van 300, via Flickr. CC BY-SA 2.0.

About the Author

David Esselstrom, Ph.D., is a teacher and writer who encourages students to express themselves clearly and creatively. He has published fiction and journalism, and has written extensively for the stage and screen. Esselstrom combines his scholarly interests and creative projects with his passion for teaching in such courses as creative writing, composition, literature, and film and media.  Via Azusa Pacific University.

by Joseph Coulson, Ph.D.

A great many ills have beset the world and our country, our less-than-whole United States of America, and we find not least among our problems an alarming lack of empathy, as if somehow our abilities to reason and empathize were the casualty of an executive order. The current decline of empathy, a downward slope that began years ago, coincides with the decline of community arts programs, cultural organizations, and school curricula and college degrees focused on the humanities. But why has our culture kicked the humanities to the curb? Why do we often speak of empathy as if it were an impractical preoccupation? I can offer no short, easy answers to these questions, but certainly the humanities as a profession began to lose its heart and soul when we stopped talking about stories that matter.

Rather than maintaining the primacy of the story as the way to engagement and learning, we in the profession began questioning our methods and purpose, losing our direction while community and cultural organizations lost funding, college professors became obsessed with literary theory, state lawmakers and school officials aimed at teaching to the tests, and federal agencies legislated in favor of nonfiction as the primary emphasis of English instruction in elementary and secondary schools. The mantra became reading for content, for finding the argument of a text and summarizing it, as opposed to the close reading of imaginative literature which demands much weightier matters of analysis and interpretation. As a culture, we opened the door and greeted expository writing and basic journalism with open arms, and we left poetry, drama, and fiction—we left stories—at the curb.

Only in stories are we asked to look through the eyes of someone that may be very different from ourselves. Only in stories do we come to understand the motives of other people, their limitations and their humanity. Only in stories are we asked to figure out why something happened or why a character behaves in a particular way—feels loved or unloved, victorious or cheated, included or left out, privileged or discriminated against. My high school English teacher declared long ago, “To learn the facts and statistics of the Dust Bowl, read an article or an encyclopedia entry. But if you want to know how it felt, if you want to learn something about its human cost and its moral implications, then read The Grapes of Wrath.” Only in stories are we asked—even forced—to empathize with people and situations that we cannot otherwise know in the limited geography of our lives. Stories in every form, stories in every family, organization, and school, provide the training ground for empathy. The less we traffic in important stories, the more we lose our sense of community and a realistic understanding of our place in the world.

In the light of a new Presidential administration, we must advocate for a renewed allegiance to the humanities. We must advocate for funding, of course, letting our elected officials know that support for the humanities also supports the duties of citizenship and the functioning of representative government. But we must also demonstrate that both the reading and the discussion of imaginative literature, of diverse stories in all forms, provide an age-old means for cultivating and developing empathy. We in the humanities must argue for the primacy of the literary story and then demonstrate its power as an agent of change. Our advocacy should advance the belief that literature is vital to our nation’s survival and that to embrace a celebrated story with respect for its challenges and complexities is also to embrace empathy.

Photo credit: Melissa Hogan, via Wikipedia. CC BY-SA 4.0.

About the Author

Dr. Joseph Coulson is the President and Chief Academic Officer of Harrison Middleton University. He is the past president of the  Great Books Foundation.  Beyond teaching, his poetry, drama, and fiction have been widely published, including two novels, Of Song and Water and The Vanishing Moon, that translated into German and French. Joe studied at Wayne State University and the University of Oxford, and he holds a Ph.D. in American Literature from SUNY Buffalo.