What is fair use?
For those of us who would appreciate a clear, crisp answer to that one, we're in luck. The Center for Media and Social Impact at American University is sponsoring development of a growing number off fair use best practices statements that inform a fresh approach to the subject and make it easier than ever to know what's fair. The best practices statements follow recent trends in court decisions in collapsing the fair use statute's four factors into two questions: Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience -- and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.
But what if your purpose is not transformative? For example, what if you want to copy several chapters from a textbook for your students to read? Textbooks are created for an educational audience. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when she created it, we are not "repurposing" the work for a new audience. Or what if you are repurposing the work for a new audience and adding value to it by comparing it, critiquing it or otherwise commenting on it, but you want to use a lot more than is really necessary to make your point?
In cases like these we also look at whether the copyright owner makes licenses to use her work available on the open market -- whether there is an efficient and effective way to get a license that lets us do what we want to do. If not, the lack of the kind of license we need to use the materials supports our relying on fair use due to the market's failure to meet our needs. If you would like to know more about a case on the subject of nonprofit educational non-transformative uses, please read the Georgia State case.
Don't forget, however, that fair use exists within a larger context. When we create materials in an educational setting, fair use is part of a web of authority we rely on to use others' works. No one strategy is enough today. Our libraries license millions of dollars' worth of academic resources for our use every year. And there are millions of Creative Commons licensed works available online. We rely on implied licenses to make reasonable academic uses of the works we find freely available on the open web. And we rely on fair use. If you can't find what you want to use among your libraries' offerings, or on the web or through Creative Commons, and your use doesn't qualify as fair use, getting permission is becoming easier every day. The Copyright Clearance Center now offers both transactional (item-by-item) licenses and subscription licenses to colleges and universities. And if you conclude that your use is not fair, but you can't license access to the work, circle back around to fair use again, because the lack of available license weighs in favor of fair use.
There are many other excellent resources online providing guidance for the use of the four fair use factors. See, for example, Columbia University's Fair Use Checklist, UMUC's Copyright and Fair Use in the Classroom, University of Minnesota Libraries' Thinking Through Fair Use, and the many wonderful statements of fair use best practices published by or with the Center for Media and Social Impact, just to name a few.
Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.
You may not need to worry about copyright at all! Many works are not protected, or are already licensed to you or your institution for the uses you wish to make.
Copyright does not protect, and anyone may freely use:
The presence or absence of a copyright notice no longer carries the significance it once did because the law no longer requires a notice. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing.
Lolly Gasaway and Peter Hirtle explain the rules for determining whether a protected work is in the public domain in two excellent resources. These rules are complex and somewhat hard to describe, partly because they changed many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be summarized as follows:
Check your library's databases and catalogs. They may already have just what you need.
Creative Commons licensed works
Learn to do effective Creative Commons searches! You may find exactly what you need with the rights you need to use it, available online for free.
Is the work available freely on the open web without an express permissions statement, and therefore covered by an implied license?
All of us who place materials on the open web do so knowing that people will use our works in certain ways (downloading, making personal copies, sending copies to friends, etc.). This is the essence of an implied license. I put my materials out there and even though I don't "expressly" give you the right to do these things, the law assumes that I must have intended to give you the right to do what a reasonable copyright owner would expect the public to do. Most nonprofit, educational uses would likely be within the scope of what people expect when they place materials on the open web. The scope of this license might be the same as or different from fair use, but it's good to know that we have both. Providing attribution should become automatic for you, whenever you use others' works.
Fair use exemption
Courts today tend to collapse the four fair use factors into two questions: Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience -- and is the amount of material you want to use appropriate to achieve your transformative purpose? If a use is not transformative, or if the amount you want to use goes beyond what you need to make your point, look at market availability. We can start with a few quick suggestions regarding the types of uses that we most commonly make of others' work on campus to implement that approach. Then, we can look more closely at the fair use statute's four factors to see how they can help you for more difficult cases.
Coursepacks, reserves, learning management systems, iTunes U and other platforms for distributing content
For transformative uses, use no more than you need to achieve your transformative purpose.
If you need to use materials in essentially the same way or for the same audience as the author intended, or you use more than necessary to achieve a transformative purpose, limit materials distributed in coursepacks, through reserves, learning management systems and iTunes U by:
Digitizing and providing access to images and audiovisual resources for educational purposes
If the use of the resources is transformative and the amount used is appropriate for the transformative purpose, digitize them and make them available as needed, in accordance with the limitations below. In some cases where a use is transformative and the institution's materials are unique, fair use will support digitizing them and providing public access. But in other cases, digitized materials should be made available in accordance with the limitations below.
If the use is not transformative, for example, in the case of analog slide sets produced and marketed for an educational audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.
Limit access to all images, audio and audiovisual resources, except low resolution small images or short clips, to appropriate audiences such as students enrolled in a class and administrative staff as needed. Terminate access at the end of the class term when appropriate.
Faculty members also may use these works at peer conferences.
Students may download, print when needed and transmit digitized works for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images and perform audio and audiovisual works in works prepared for course assignments etc., and may keep works containing them in their portfolios.
Digitizing and using other's works creatively
Students, faculty and staff who wish to use others' works in creative, transformative ways, may incorporate others' works into their own original creations and display and perform the resulting work in connection with or creation of:
While creative uses tend to be transformative, we still must be careful to use no more than needed to achieve the transformative purpose.
Limit copies and distribution.
Getting rights to use a work is becoming easier in many cases. For pointers to collective rights agencies, information about transactional and subscription licenses, and important considerations in the process of obtaining permissions, please see, getting permission. If you have a choice about what materials you use for a particular purpose, consider also that you can eliminate the need for item-by-item- permission to use others' works if you choose works that are already licensed for the use you plan to make. For example, there may be appropriate materials for your purposes already licensed by your library; appropriate materials may be available with Creative Commons licenses that allow nonprofit educational uses without permission; or materials may be freely available online that carry implied rights to make uses as you plan. Information about these choices is available in accessing and using library resources, at Creative Commons, in content on the web, and managing your copyrights.
If you are associated with the University of Texas at Austin as faculty, staff, or student and have questions about the application of the four factor fair use test, please contact Colleen Lyon.
This work is licensed under a Creative Commons Attribution-NonCommercial 2.0 Generic License.