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§ 107 . Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the 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—
(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Rather than a difficult legal question, “Is this fair use?,” why don’t we ask ourselves a question we are particularly well-equipped to answer, such as “What are the pedagogically sound options for making this text available to my students?” In arguing we should reframe the issue this way, I am guided by James Porter’s approach in Rhetorical Ethics and Internetworked Writing. The law is difficult and unwieldy and hard to know. Instead of getting bogged down in it, let’s deal instead with the ethical -- and yes, pedagogical -- concerns in which the fair use/dealing exception for copying related to “educational purposes” is grounded.
http://www.hybridpedagogy.com/