Leadership Letter
October 2021
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.
Is an article I found online ‘fair use,’ as long as it’s for educational purposes?
A common misconception about copyright law is that, if a published work does not include a copyright notice, it is not a copyrighted work. But in fact, U.S. law grants copyright protection automatically to any original expression as soon as it is affixed in some form of tangible medium. This includes text and graphics, preserved either in print or electronically, as well as sound and video recordings. Nor is it true that an article or image made freely available on the World Wide Web is in the “public domain” and may be copied and reproduced without permission. Actually, with few exceptions—e.g., works created by the federal government—a copyrighted work typically only enters the public domain 70 years after the death of its author.

In fact, given the length and extent of copyright law, it is safest to assume that any material you wish to reuse from a print or electronic publication is subject to copyright protection. However, this does not necessarily mean that you must seek a copyright license before making any use of material that is not your independent creation.

Perhaps the most important exception to the general rule that a copyrighted work cannot be reused without permission from the copyright owner is the fair use doctrine. The U.S. Copyright Act provides that other persons can make “fair use” of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Unfortunately, this act does not provide an exact description of what types of use are “fair.”

Instead, the Copyright Act gives a list of factors that can be weighed to determine whether a particular use is fair. These factors include:

  1. the purpose and character of the use, including whether such use is of 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.
Under this guideline, uses of pre-published material that provide commentary on the original source, are non-commercial in nature, borrow from factual rather than imaginary works, take only a small portion of the original content, and are unlikely to harm the demand for the original are more likely to be protected as a fair use.

These factors are not all-inclusive, nor are they an absolute protection against a finding of copyright infringement. Before deciding to make any use of copyrighted work without permission, please be aware of the following:

  1. Fair use is not a bar to litigation, only a defense. A copyright owner still has the option to file suit and let a court decide whether the use is fair.
  2. Courts differ on what uses are “fair.” While some courts have, e.g., found that summaries of articles or copies of images for the purpose of news reporting are a fair use, others disagree, and even the same court at a different time may rule differently on an issue.
  3. Providing proper acknowledgment of the source does not protect you against an infringement suit.
  4. While some copyright owners (including ASCE) issue guidelines allowing quotes of up to 50 words for periodical articles and up to 500 for books, there is no such thing as a “safe” word limit for quoting copyrighted material.
Ultimately, there are only two ways to ensure that your reuse of another person’s original content does not constitute copyright infringement: 1) look for material whose owners have expressly offered it to the public domain, or who have granted an open license for its use (the Creative Commons website, https://search.creativecommons.org, is one of many online sites where you can search for text or images that are available for reproduction); or 2) contact the copyright owner of the work in question and request permission for your particular use. .