Last week I wrote about plagiarism and how the concept applies in assessment development. Plagiarism is about using others’ ideas or words without giving appropriate credit (i.e., citation). But appropriate varies from context to context, and in assessment development the only things that are generally credited are excerpts from previously published work. That is, quite extended quotations — which are credited to their original creators or copyright holders.
This week, I address copyright infringement and fair use, in the context of assessment development.
What Is Copyright?
Copyright is mentioned in the US Constitution, that Congress shall have the power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That covers copyright and patents, respectively.
Copyright only protects expression, and not ideas. So, it protects this blog post as I wrote it, but not the ideas or organization of the ideas. It protects my words. Copyright protects visual media, as well. That’s photographs, illustrations, painting, drawings, film/video, etc.. Again, it protects the actual exact thing, not the ideas behind it. You can rip off a plot, without violating copyright.
Copyright does NOT protect physical things. It does not protect inventions (i.e., that’s patent law). It does not protect designs for clothing or handbags, even though their look is part of the point. Should it? Well, it doesn’t. That’s how it works. It protects computer software because…because it does. Because software is written in a programming language, and back in the day lawyers convinced courts that that was the best way to think about computer software.
Copyright allows the copyright holder — usually the creator, unless they have transferred their copyright to someone else — to decide how the work may be used. It’s up to them. And it lasts for a limited amount of time, though that period keeps getting extended longer and longer. It is supposed to expire, eventually.
What About Fair Use?
Fair use is the big exception to copyright. The copyright holder gets to control how and in what conditions the work can be used, except for fair use. People talk about parody and satire, but what they really are talking about is a particular kind of fair use.
Fair use is not just an opinion. It is a technical term and the law (i.e., Section 107 of the Copyright Act) defines a four factor test to determine whether something is fair use.
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
These four factors are all relevant. Each must be examined and then the results are weighed out.
Factor 1: Purpose and Character of the Use
Some people falsely think that if they are not making money when they violate copyright then it is ok, that it is fair use. But they are generally wrong. Yes, that is relevant, but it is not enough. It is just one part of this one factor.
As one weighs out the four factors, it does matter if the goal of the enterprise that is using the work is to make money. That is, use by a commercial entity in the furtherance of its goals and operations — even if the reproduction is not actually being sold — is commercial use. Even if the use does not make money itself, it can still weigh against the use. On the other extreme, non-profit educational use is the best case for fair use. A for-profit educational organization is close to that extreme, but not all the way there. A non-profit that is not education is not all the way there. A random book publisher or restaurant? Those are just straight commercial uses.
Quoting a work to comment upon it, like in a book review or various forms of scholarship? That’s leans heavily into fair use. Some might even consider that an educational use.
Regardless of the context, when use of a prior work transforms it in some way, fair use is a more likely conclusion. This is usually the point of parody and satire. The more they transform the original work, the more likely they are to be seen as fair use. Summarizing a work may include all of its ideas, but it entirely transforms the expression of those ideas. How transformative a use is can be a matter for debate, but there’s no question that greater transformation is more likely to be fair use.
Factor 2: Nature of the Copyrighted Work
Not only does the use matter, but so does the nature of the original work being copied.
Creators should generally have control over first publishing of their work, so courts are more protective of unpublished work than published work. That weighs against a finding of fair use.
Copyright is generally understood to be more focused on encouraging creativity than other sorts of endeavors, so fiction and other literary work is generally more protected than work aimed at being informative. This blog post? Informative. The 5pm newscast on your local TV station? Informative. That hit movie or novel? Literary.
Where does documentary film fit in that? It is a certain kind of creativity to record, edit and put that together. It is supposed to be entertaining, in addition to being informative. So, the courts might give medium weight to that, rather than maximal or minimal.
Once again, however, this is just one of four factors, and they all must be weighed against each other. There is no condition of any factor that guarantees a particular final ruling on the question of fair use.
Factor 3: Amount and Substantiality of the Portion Used
This is likely the easiest factor to understand, of the four.
If you are using a small piece of the original, then it is more likely to be fair use. The more you use, the less likely it is to be fair use. You copying the whole thing? That’s gonna weight heavily against you.
Note that this is not amount the absolute quantity used, but rather the relative quantity. Copying all of a 4-line poem is using the whole thing, while copying four lines of a 100-line poem is only using a small piece. 200 words from a 20-page short story is very different than 200 words from a long novel.
Of course, this posits a problem: how do you define the original work? Is it five minutes from an episode of a television show (i.e., nearly 25%)? Or, is it five minutes from a whole television series (i.e., less than 1%)? Obviously, the copyright holder would want to claim the former, and the person seeking fair use would claim the latter. It can be quite a challenge to figure out how to evaluate even a single of the factors, sometimes.
Factor 4: Effect of the Use Upon the Potential Market
This factor ought to be quite easy to understand, but it is far too often ignored.
If the use would tend to decrease the market for the original work, that counts against fair use. So, a teacher who makes copies of a story to distribute to their class, so that the school does not have to pay for the book in which the story appears? Sure, that’s an educational use, but it directly harms the market for the original work. Without making those copies, the school would have to pay for the book.
In theory, some uses may encourage the market for the original work. For example, movie reviews bring free publicity for films. Now, this — like the photocopied story — is hard to disentangle from the purchase and character of the use. But it can be pretty easy to recognize when the use is primarily to avoid having to pay for the original.
On the other hand, when a work is out of print and unavailable on the market, there is less likely to be an impact. That doesn’t mean it has to be available in the form you would prefer (e.g., streaming). If it is only available in some other form (e.g., BluRay or DVD), that’s still available.
Applying the Four Factors to Test Development and Publishing
The assessment industry has settled on some patterns of practice in building stimuli for items that can be examined through these four factors to determine whether they are fair use. These stimuli may include reading passages or other works that could be under copyright.
While professional licensure exams and certainly a commercial purpose, K12 assessments are intended for educational and public policy use. Test development vendors that are non-profit organizations are, therefore, engaged in non-profit educational work. For-profit test developers are not quite as well off, in this regard. But all of them tilt at least a little towards fair use.
Original works maybe more creative (e.g., poetry or short stories) or more informative (e.g., journalism or scholarship). If they are previously unpublished, they are always are commissioned by the test developers, so they own the copyright. But those other works — if the copyright has not expired (i.e., are now public domain) are quite often in the more creative realms. That argues against fair use.
Test may include whole poems or articles, and may be limited to excerpts from larger works. It really runs the whole range. In some cases, this argues for a determination of fair use, and in others it agues against. Mostly commonly, though, they are excerpts.
It is not likely that any on a large scale assessment would lessen the demand for work in the market. That argues for fair use.
Taken together, this very straightforward analysis suggests that most use of potentially copyrighted works would pass for fair use. Excerpts used by a non-profit company to put out a product for educational use is usually going to be fair use. A for-profit company using an entire poem or an original photograph is far less likely to be considered fair use, regardless of its impact on the market for the work.
Additional Considerations
Fair use does not matter if the user (e.g., a test developer or client) is willing to pay a licensing fee agreeable to the copyright holder and works that are in the public domain have no copyright claims — by definition). This why most test developers go with three options.
Try to find public domain works
Permission existing works (i.e., pay a licensing fee)
Commission works that they can own the copyright to.
Even more broadly than that, many test developers make use of ideas that the find elsewhere. But ideas are not copyrighted. Summaries, reimaginings, simplifications and adaptation are so transformative as to not even constitute use of the original expression, and therefore questions of fair use vs. copyright violation.
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This entry does not address any of those other intellectual properties areas (e.g., trademark, trade dress, trade secrets, patents), as they do not apply at all to questions of test content — though they certainly are interesting in their application elsewhere, even in the context of assessment development organizations.