Proportion of copyrighted material that can be distributed without infringement

Question

Is there a threshold or a descriptive proportion that is considered not copyright infringement but merely creative and educational use when distributing some copyright protected material along with your own material?

Suppose a research team had a data set, and corresponding to each data point, had a large chunk of copyrighted text. What proportion of this text would they be able to release as preview or demonstration of the material without it being considered copyright infringement?

I would like to cite Google Books, and the popular case of Google Inc. vs. The Authors Guild, where, under Google's book digitization project, they show certain subsections of the book to the general public for no charge, but argue that it is not copyright infringement.

Answer 1

There is no fixed amount or proportion of a copyrighted text which may be quoted without infringement. Whether quoting without permission is a fair use (which is what this question asks) depends on the totality of the circumstances, including the purpose of the use, the effect of the use on the market or potential market for the original, and the nature of the original work.

In the Harper vs Nation case, quotes totaling roughly 300 words from the autobiography of former President George H. W. Bush (which was many hundreds of pages long) were held to be the "heart" of the work, and quoting them was found not to be fair use.

There is no formula which can be rigidly or automatically applied to determine if a quote is a fair use.

Note also that fair use is a strictly US legal concept, and a use which would be fair use under US law might well be copyright infringement under the laws of the EU, the UK, or other countries.

Answer 2

What proportion of this text would they be able to release as preview or demonstration of the material without it being considered copyright infringement?

That proportion of the full text of a work that you decide to use should be determined after you consult Fair Use | U.S. Copyright Office; it's going to be the research team's judgement call as to how much to use in order to fall under different types of use under the umbrella of Fair Use.

Fair Use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes....

Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression....

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used....

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work....

If you are the subject of legal action by the copyright holder with a claim of copyright infringement because they feel you used more than Fair Use, you will no doubt plead some aspect of fair use in court as your defense. The differences between parties in the amount and significance of usage under Fair Use are ultimately decided by a court.

One strategy to avoid legal problems is to contact each copyright holder and get explicit permission to use specified amounts of text; that solves the issue of you making your own decisions - and also legal liability issues - about what might be Fair Use.

As for Google, they use a legal precedent to scan and use copyrighted material for their service, though not everyone is happy about it, and that's why they were in court for years; read Google Books just won a decade-long copyright fight - The Washington Post.