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Scholarly Communication Services - Copyright for Teaching & Instruction: Fair Use

What is fair use in teaching and instruction?

 

Fair Use

 

This page will assist with questions regarding the following:

  • For face-to-face teaching:  Using books, articles, videos, images or other copyrighted works in while the classroom.
  • For online learning (posts on Canvas or online courses): Posting links to or files of books, articles, images, or other copyrighted works (excluding video).

Educators rely on fair use to reuse copyrighted materials for teaching without permission.  It allows limited copying, sharing, clipping, and repurposing some types of work depending on the details and purposes of its use.  

Fair Use Analysis.  There are no black and white rules of fair use, and copyright law is dependent on interpretation. To apply fair use for teaching and instructional purposes, a fair use analysis should be done, and experts recommend keeping record of this (Stim, 2020); see the following tab, "How do I make a fair use analysis?" for more details.  An analysis of fair use's 4 factors will help you determine the majority of your reuse questions;

  • Purpose of Use:  Is the use transformative?  Why is the work being copied, and for what reason?  Does its copying or use add a new meaning, character, message, or function of the work?
  • Amount and Proportion of Work Used:  How much of an original work is being used in proportion to the original work, or is it a significant part of the work?
  • Nature of Work:  Is the copyrighted work based on fact, or is it a creative work?  Is the work published or unpublished? Is the purpose of the copyrighted work to inform or entertain?
  • Effect of Reuse on its Market or Demand:  Does copying or reusing the work make it less valuable or affect the demand for it?

The Case for Fair Use.  While educators may feel frustrated by fair use's lack of specifications on what can and cannot be done, fair use remains a valuable copyright exception for education.  Teaching and learning takes place because of the exchange and discussion of established ideas that build upon (and give credit to) the works of others.  Without fair use, the opportunities for free speech and teaching are limited.  The more you become acquainted with fair use and its analysis, the more confident you will feel with applying it towards your teaching and learning.  

Disclaimer: The FAU Libraries and its faculty, staff, and administration are not attorneys and cannot interpret the law.  This information is provided for educational purposes only and does not substitute for advice from legal counsel.

Source:  Stim, R., (2020).  Fair use: The four factors courts consider in a copyright infringement caseNolo. https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html 

How do I make a fair use analysis?

 

Fair Use

 

Keep in mind that a fair use analysis is not determined numerically (e.g., it's fair use if the analysis says it 3 out of the 4 factors).  An analysis is made by balancing the 4 factors, which can be done with a broad or narrow interpretation of the factors which depends on your risk tolerance. See our PDF of a fair use checklist to keep track of yours.  

 

FACTOR

WEIGHTING TOWARDS FAIR USE

WEIGHING AGAINST FAIR USE

 

Purpose of Use and Work's Character

  • Is the use transformative?  Why is the work being copied, and for what reason?  Does its copying or use add a new meaning, character, message, or function of the work?
  • Nonprofit, academic, educational use;
  • Criticism or commentary;
  • Transformative use;
  • Creating a new meaning or use.
  • Commercial, for-profit use;
  • Entertainment use;
  • Decorative use;
  • Creating an exact copy.
 

Amount and Proportion of Work Used

  • How much of an original work is being used in proportion to the original work, and is it a significant amount?
  • Small proportions of a work;
  • Less significant amounts;
  • Less significant content.
  • Using a whole work, especially when not needed;
  • Using a proportionally large amount;
  • Using the most significant content within a work.
 

Nature or Type of Work

  • Is the copyrighted work based on fact, or is it a creative work?  Is the work published or unpublished? Is the purpose of the copyrighted work to inform or entertain?
  • Fact-based works (non-fiction);
  • Purpose is to inform;
  • Published works.
  • Creative works (literature, poetry, or images);
  • Consumable material (e.g., workbooks).
  • Unpublished work.
 

Effect on Potential Market Value or Demand

  • Does copying or reusing the work make it less valuable or affect the demand for it?
  • Use has no effect on market;
  • Does not affect demand or use of a work.
  • Diminishes the demand or price of a work;
  • The work can be readily obtained for a given purpose at a reasonable cost.

Fair Use Essentials

Fair Use in Plain Language

Evaluate Fair Use (Checklist)

Images source:  Pixabay.com, permission by CC0.

Fair Use Recommended Practices

When it comes to fair use, best practices and recommendations have been created by communities of practice to provide lower-risk uses of copyrighted work.  Keep in mind they do not override copyright law.  

Better Practice #1.   Use works that are licensed for acceptable for use in online settings:

  • Works with Creative Commons licenses.
  • Works in the public domain.
  • Online library materials through the FAU Libraries can generally be used on Canvas.

Better Practice #2.  When reusing works found on the internet:

A.   Do a fair use analysis.

B.   Make sure the work is a legal version; many books and documents on the internet may be pirated work or posted without the copyright holder's permission.  

  • Know the origin of how a work got posted on the internet or who is responsible for doing it.
  • Many copyrighted works have been scanned or posted on the internet without the copyright holder's permissions!    

C.   Provide URLs to a work (a URL by itself is not protected by copyright).  

Better Practice #3.  If using copyrighted works, follow these steps:

A.  Check for a work's copyright.

  • Find a copyright statement towards the beginning of a work, either in a book's verso or the first page of a published article.
  • Use various tools to identify the copyright holder for a work.  The Copyright Alliance provides databases to locate copyright holders based on type of work (e.g., music, image, etc) while the US Copyright Records System has some from 1978 to the present.

B.   Do your fair use analysis and balance its 4 factors.

C.  Use the legal version of a work and know its origin once you either made a fair use determination or received permission to reuse.

Better Practice #4:  Model the practices you want your students to follow!

Studio

Image source: Studio mixer, by Bruno/ Germany. https://pixabay.com/photos/studio-music-mixer-audio-1003635/. Permission by CC0.

Fair Use Multimedia & Handouts

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