Publicly Posted PowerPoint ≠ Public Domain

Dear Rich: I run a volunteer-run/non-profit educational program for students who have failed the Naplex several times. I saw PowerPoints posted publicly on a school's website, which I thought would be useful. They are available publicly for everyone to see and download. The website does not have a notice about not being allowed to use them. I intended to cite the source and include the author's name in the title. Is it still considered copyright infringement to use them?  How do you tell if materials are public domain or fit under fair use? 

For readers who are unaware, the NAPLEX is "a 250-question, multiple choice, computerized examination designed to determine whether candidates have the knowledge, judgment and skill necessary to practice pharmacy at entry-level competence." As for your concerns: 

The PowerPoints are publicly available. The PowerPoint slides may be available, viewable, and even downloadable, but that does not give you the right to copy and republish them. There's a difference between authorized end-user activity and unauthorized copying. 

There is no statement forbidding copying. Under U.S. law, a copyright owner does not need to include a copyright notice on published works, nor does the owner need to post notices barring the use of the work. You should presume works are protected by copyright unless proven otherwise. 

Citing the source. Attribution is a thoughtful gesture, but providing the author’s name or source will not excuse someone from a charge of infringement (or qualify the use as a fair use). That said, judges and juries may take attribution into consideration. For example, an author who provides attribution may be considered more favorably when  a judge or jury makes a fair use determination or awards damages. Occasionally attribution backfires, for example, if the author doesn't want to be associated with your program or if the author was otherwise unaware of the copying and was alerted to it by the attribution.  

How do you tell if materials are public domain or fit under fair use? Any work of authorship not protected under copyright law is said to fall within the public domain. This means anyone can use the work without obtaining permission from the author or the author’s heirs. There are  several common reasons why works may be considered to be in the public domain as demonstrated by this chart. Because the PowerPoints were created within the past few decades, we doubt whether they are in the public domain.

Your copying may qualify as fair use, but that depends on whether your unauthorized use is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an unauthorized use should be excused based on fair use, a court will use several factors, including the purpose and character of the use, the amount and substantiality of the portion borrowed, and the effect of the use on the market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if you obtain permission from the PowerPoint copyright owner, then the uncertainty surrounding the use goes away.