United States Copyright Law: Fair Use, Copyright Infringement and Plagiarism

In the internet age, everyone should know, "Acknowledging the source of the copyrighted material does not substitute for obtaining permission" according to the United States Copyright Office. This is at the forefront and bolded because many people seem to think that if they attribute something they are safe with regard to fair use, copyright infringement and plagiarism. However, that thought process is wrong. The above quotation falls within the copyright realm of fair use because it is a reasonably short excerpt, it provides attribution and it does not detract from the commercial endeavors of another.

Section 107 of the United States Copyright Act delineates the four factors or torts to consider when determining if a work falls within the copyright realm of fair use. As a person who was educated in this arena through the receipt of my Bachelor's Degree, I will elaborate, as I believe, in the internet age, everyone should be taught copyright and fair use information by middle school, at the latest.

There are four torts to consider when deciding if a work is of fair use - in other words, does not constitute copyright infringement, plagiarism or some other copyright law. As defined by Section 107 of the United States Copyright Act: (Note: These must be considered together.)

1 - "The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."

If a written work is for nonprofit or educational purposes, it is granted more leeway. However, it still must abide by the four torts considered for fair use. Plagiarism is plagiarism. Everyone who has attended a public school has heard about plagiarism. Although nonprofit and educational endeavors receive more leeway than commercial endeavors, they are not immune from the four torts considered for fair use under copyright law.

2 - "The nature of the copyrighted work."

Facts cannot be copyrighted. Facts are facts. However, the manner in which they are presented is copyrighted. In other words, a writer needs to convey the facts in an original way. "To be original, a work does not have to be unique, novel or even good. Rather, the work must be created independently - not copied from another work - with a modicum of intellectual effort" according to the fifth edition of "The Law of Public Communication" (page 217) by Kent R. Middleton, Robert Trager and Bill F. Chamberlin.

3 - "The amount and substantiality of the portion used in relation to the copyrighted work as a whole."

In other words, copying an entire blog entry or article is not allowed. Also, copying the majority of a written work is not allowed. They are both copyright infringement. However, it has been found that the use of a single paragraph of a book can breach fair use if the paragraph is highly relevant to the book. For example, a memoir with a juicy paragraph of confessions including illegal and sordid affairs. Granted, this can be a judgement call. When in doubt about copyright and fair use, ask someone in a better position to make the judgement. Or, refrain from using the material in question. Being cautious is the best way to prevent breaching one of the four torts of fair use and preventing copyright infringement or plagiarism.

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

The written work being tested by the four torts of fair use must not unfairly infringe upon the commercial endeavors of a work that it utilizes. In other words, when re-posting an entire article in a forum or message board and including the link, you are breaking one of the four torts of fair use and committing copyright infringement. "But I included the link," people retort. That may be true and attribution is relevant and necessary, but it is not the only consideration when determining fair use. Now that you've also posted the entire article no one has any reason to visit the link. Undoubtedly, the website the article was lifted from receives revenues from advertising. (Even if this is not currently the case, it may be in the plans for the business.) Without enough hits or clicks to the website, advertising revenue decreases or is totally wiped out. Henceforth, such an act breaches upon commercial endeavors and is a breach of fair use as defined by the United States Copyright Act. Remember the quote we started with, "Acknowledging the source of the copyrighted material does not substitute for obtaining permission" according to the United States Copyright Office.