LibGuides: Open Education Week: Is it Fair Use?

Disclaimer: This information is not meant to act as or take the place of legal advice.

Copyright Basics

We can’t talk about Fair Use without first talking about copyright. Why? Because Fair Use (and similar legislation like the TEACH Act and Section 108) exempt users from some copyright restrictions. Here’s a tl;dr of copyright:

Copyright is granted under Article I, Section 8, Clause 8 of the U.S. Constitution
Copyright grants a set of exclusive rights to who can copy, distribute, perform, adapt, or otherwise use creative work
Typically the copyright of a work is held by the creator of the work (read more about works-for-hire situations)
Copyright is automatic and takes place the moment a work is fixed in a tangible medium
Registration is not required to own the copyright but is helpful to have if trying to enforce exclusive rights through litigation
It is usually the burden of the copyright holder to protect their copyright if they suspect a violation

You can learn a bit more about copyright on our Copyright Law page or grab some popcorn and take a deep dive on the U.S. Copyright Office Learning Engine Video Series page.

Fair Use: It’s a Test Folks

Busy today? Check out this tl,dr Fair Use Fundamentals infographic from the folks at Fair Use Week.

The Fair Use Doctrine, established under Section 107 of the U.S. Copyright code, allows for legal unlicensed use of copyrighted material of another creator's work under a four-factor test. Some examples of the purpose for a fair use test are provided including criticism, comment, news reporting, teaching, scholarship, or research. However, the courts evaluate fair use claims on a case-by-case basis and the outcome of any given case depends on a fact-specific inquiry (Fair Use Index). This means there is no singular rule for what counts as Fair Use. For example, even though we are educators working at a non-profit institution, not all of our “use” of copyright material is “fair” (we can’t copy whole textbooks and freely distribute them to our students, no matter how much we may want to). Alternatively, just because a work is being used for-profit does not negate the “use” from being “fair” (e.g. Weird Al’s entire career).

In 2013 the U.S. Copyright Office Fair Use Index was launched to “make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions” and is “helpful in understanding what courts have to date considered to be fair or not fair” although it is not a substitute for legal advice. The index does not provide all case documents but instead offers a “brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair.” This tool can be useful when making your own Fair Use determination, described below.

The Four Factors of Fair Use

If you find a resource and you want to share or distribute it in any way, assume it has full copyright protection unless labeled with an open license or has public domain status. Evaluate the resource and your intended use of the resource to see if that particular use is fair:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Some resources to help determine if your use is fair, in addition to the Fair Use Index, include the Fair Use Evaluator and the Copyright Genie.

Fair Use and OER

Yikes! If you are still reading (congrats on your attention span!) you may be turned off from the idea of ever trying to share a non-open resource. Fair Use and similar exemptions are complicated, which is one reason why many have decided to share their works with an open license or use OER in their classroom. We will discuss open licensing next week and, while there is a lot of benefit to using and contributing to OER, you should also feel empowered to use resources that are protected by copyright – just be sure that your use is fair. You may find this infographic discussing Fair Use Myths & Facts from the Fair Use Week folks helpful.

Follow-Up Clarification on Fair Use

Linking to a Source is not Copying

I advised that “if you find a resource and you want to share or distribute it in any way” then you should assume it is under full copyright unless clearly labeled as openly licensed or in the Public Domain. This is still true BUT mainly for situations when you are making a copy. If you are simply sharing a link to a source you are probably not infringing on copyright nor do you need to make a Fair Use evaluation. However, be aware that the Internet is full of materials that have been illegally uploaded by a third party. You can read more on the Digital Media Law Project website.

Fair Use is Situational and Contextual but has Patterns

The Fair Use Doctrine isn’t a set rules but rather outlines a Four-Factor Test to determine if a use is considered “fair”. However, just like other legal rulings, patterns in Fair Use rulings emerge over time that we can look to for guidance. These patterns help inform codes or statements of pest practice to make the process of using works under copyright a bit less onerous. In addition to the Fair Use Index, Stanford University Libraries keeps an excellent Summary of Fair Use Cases that can help guide your Fair Use evaluations.

Open Education Week