& The Fair Use Act
Link to Video (above): Crash Course on Plagiarism, Copy Right, and the Fair Use Act
Plagiarism is the act of taking someone else's material and claiming it as your own and not crediting the source of the original material. Plagiarism is defined as "the use of another's information, language, or writing, when done without proper acknowledgment of the original source" (plagiarismtoday.com). Plagiarism is considered a morally reprehensible crime because it involves both lying and deception and may cause a greater impact on the original author; however, it is not illegal unless it also violates or infringes upon copyright laws.
Link to video (above): What is PLAGIARISM and how to avoid it?
Copyright and Copyright Infringement
Copyright and copyright infringement are broad terms used to define a variety of actions. Copyright is giving legal ownership of the original work to the originator, or an assignee designated by the creator, to publish intellectual property at the owner's discretion. Copyright law is usually in effect "for the life of the author plus seventy years" (libguides.utm.edu). Copyright is defined as "a law that gives you rights over the things you create. The right to reproduce the work, to prepare derivative works, to distribute copies, to perform the work, and to display the work publically" (plagiarismtoday.com). Copyright infringement is a violation of copyright. It is the process of duplicating, rewriting, and performing a work that is not one's own without permission from the originator or designated assignee. Copyright infringement is an illegal act, punitively punishable in both civil and criminal courts.
Link to video (above): Copyright Basics
Fair Use Act
The Fair Use Act is an act that was established in 1976 to protect the use of copyrighted works in limited circumstances (fairuseweek.org). It can only be deemed legal and ethical and determined as permissible in a court of law. The Fair Use Act is defined as "a legal gray area that refers to exceptions in the rights of copyright holders and allows for limited use of copyrighted material, even without permission" (plagiarismtoday.com).
Link to video (above): FAIR USE in 7 WORDS
Fair Use VS. Copyright Infringement
The Transformative Factor:
The Transformative Factor is one indicator of whether or not one is under the protection of the Fair Use Act or participating in Copyright Infringement (csmipact.org):
1. Has the material you are using been transformed by adding new expressions or meanings? If so, you are in accordance with the Fair Use Act.
2. Has value been added to the original material by creating new information, aesthetics, insights, or understandings? If so, you are in accordance with the Fair Use Act.
3. Is the purpose of the usage of material for scholarship, research, or educational purposes subject to review and commentary to gain insight? If so, you are in accordance with the Fair Use Act.
Cases when Fair Use is usually accepted:
Below are the 5 areas when the use of copyrighted material may be permitted without copyright law being enforced (libguides.utm.edu):
1. Criticism or Commentary: quoting to illustrate or examine
2. News Reporting: summarizing an address or an article
3. Research and Scholarship: quoting for scientific, scholarly, or technical use for review and commentary
4. Nonprofit Educational Work: Copying (a small portion) for use in an educational lesson
5. Parody: quoting famous individuals to ridicule or make fun of for the purpose of comedic relief
*However, it is always important to remember that although copyright law may not be broken if the above criteria are met, you must still give accreditation to the original source to avoid plagiarism.
When determining Fair Use, judges typically abide by the following four factors to reach a decision between Fair Use and Copyright Infringement:
1. What is the purpose of the use of the material? Is it for commercial gain or for non-profit, educational purposes? If the latter, it will almost always be permitted under the Fair Use Act. However, the usage of materials does not permit that material, in its entirety, can be duplicated without permission from the originator. For example, an English teacher would have permission through the Fair Use Act to copy a few pages from a novel for use within the context of a lesson plan; however, he/she could not photocopy an entire novel for use in his/her classroom and be allowed to escape the possibility of punishment because Fair Use is allowed only for portions of works, not whole works.
2. What is the nature of the copyrighted work? Is it non-fiction or fiction? Is it a published work or a non-published work? The nature of the work generally affects Fair Use criteria as biographies have more copyright allowance than fictional works under the protection of intellectual property since the creation of something new is deemed more necessary of protection than actual historical occurrences. This is meant to encourage, and thus protect, the creation and dissemination of new works for the benefit of the public and to further advance society. Similarly, non-published works have more protection under the Fair Use Act than do published works because most believe that the most important next step in the creation of a work is the ability of a first-time author to decide upon publication him/herself. Once a work has been published the author has already exercised this control of publication so less protection is granted over the dissemination of the work.
3. What is the substance of the portion used in relation to the work as a whole? Typically judges and juries agree that a good rule of thumb is "less is more" when dealing with the substantiality of a work. Most would agree that the usage of a small amount of a work (less than 10%) falls within the Fair Use Act, although there are no actual numerical guidelines attached within the Fair Use Act. However, all agree that if the "heart of a work" is taken and used, whether it be 10% or 1% of the original work, it is a copyright infringement.
4. What is the effect on the potential value of the work? If the usage of the work affects or will affect the marketability of the item, that is in violation of the Fair Use Act. Artists are expected to be able to profit through financial gains form their works if possible, so it is important to protect one's ability to do so, or the creation of work would potentially be limited.
5. And one that isn't really a factor, but often times considered during the adjudication process: Are you good or bad? Because Fair Use is determinate upon the moral biases of judges and juries and their personal and individualized sense of right or wrong, it ultimately comes down to being a moral offense (csmimpact.org).
Guidelines for Fair Use
Fair Use is from Section 107 in the Copyright Law. In that section, there are no set guidelines for Fair Use. Some rules of thumb that have been ruled upon in the past are. . .
- less than 10% of an original work
- less than 400 words of a written work
- less than 3 minutes of a film
However, none of these rulings are set in stone as guidelines as the law was designed to create fairness, but also flexibility, so that it could be interpreted and applied differently dependant upon the situation and circumstance. This was in hopes to allow communities with best practices, or general policies, to have an adaptive response that promoted the ability to govern the norms and conditions and make determinations on a case-by-case basis (csmimpact.org/bestpractices).
Ways to avoid plagiarism, copyright infringement and abide by the Fair Use Act:
There are many websites that help prevent plagiarism and copyright infringement and to inform on The Fair Use Act:
Popular vlogs and video tutorials like that from the Visual Communication Guy can help a writer determine if they have plagiarized material and how to avoid it. Link to the Visual Communications Guy: https://thevisualcommunicationguy.com/2014/09/16/did-i-plagiarize-the-types-and-severity-of-plagiarism-violations/
Other websites that may be of help to writers are http://grammerly.com and http://paperrater.com. Both websites offer free plagiarism checkers for the general public to upload written work into, and the material of the work is checked against the web to see if duplicated ideas are present anywhere on the internet. These websites will produce a percent plagiarized score for each uploaded document for students to review, as well as, provide the websites where phrases found to be duplicated or common paraphrased ideology exists on the internet.
Similarly, there are websites where one can check to see if copyrighted information has reached the public domain yet. One can view this information at http://copyright.gov/records/. This website allows users to see if copyright permission is needed for certain works or if it has reached the public domain, and therefore, is not necessary to obtain, and accreditation only needs to be given to the author to avoid plagiarism.
For FAIR USE:
Finally, for information on the Fair Use Act, the http://fairuseweek.org and http://archive.cmsimpact.org/fair-use/best-practices have best practices, tutorials, and ways to participate in Fair Use practice.
References for Research: