Taking donations on website with copyrighted material

Question

I have a personal website where I post educational material and it contains copyrighted material. The legal owner requests to seek permission to use his material before anyone use it in his/her work As far as I know at least in USA publishing copyrighted material with educational intent falls under "fair use", meaning no problems for me

Can I ask readers on my website to make donations and not cause problems with the copyright holder at one time? I live in USA but can you tell me how the law regulates this in different parts of the world?

Answer 1

17 U.S. Code § 107, which governs fair use in the US, says (emphasis mine):

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Note that commercial/educational use is part of only one factor. Even if that factor is in your favor, it may not be fair use, and even if it isn't in your favor, it might be fair use. Because fair use is determined on a case-by-case basis, we can't really say whether your use is fair use, with or without the donations. That would be the sort of thing you'd ask a lawyer about to get real legal advice on your particular case.

Answer 2

If the use of the content qualifies as fair use without the request for donations, it will quite probably still qualify as fair use with them. But the mere fact that the purpose is educational by no means ensures that it qualifies as fair use.

The answer by DM correctly quotes US law (17 USC 107) and lists the four factors which must always be considered in a fair use analysis. No one of the factors generally determines whether a use is a fair use or not. But the effect on the market for the original is often particularly important. In addition courts often consider whether a use is transformative. That is, whether it uses the content in a significantly different way than the original did. A finding that a use is transformative favors fair use. This answer gives a more detailed analysis of the four factors that determine fair use decisions.

Non-US law

Fair use is a specifically US legal concept, and does not exist in the copyright law of any other country. The Berne Copyright Convention provides for exceptions to copyright in article 9 paragraph (2). Different countriews have implemented different rules for exceptions. Several have laws providing for exceptions for comment, criticism, and news reporting. Some also provide limited exceptions for educational use. Some of these exceptions are known as "fair dealing" a term originally from UK law. Not all countries that use this term mean the same thing by it.

Most of the exceptions to copyright in the laws of countries other than the US are significantly narrower than the US concept of fair use.

A copyright holder may sue in any country where the copyright is infringed, and the laws of that country will govern the suit. However, if the accused infringer is not present and has no property of business in the country, any decision will be hard to enforce.