Fair Use and Other Educational Uses – Copyright at Carleton

Why we have fair use • The four factors of fair use • Rules of fair use • Teaching and educational use • Transformative use • top ^

Why we have fair use

Fair use is an important part of copyright law that provides some flexibility for users and new creators.

Fair use is related to the freedom of expression in the First Amendment to the U.S. Constitution. Courts have said that copyright should not be used to try to control how other people speak.

Fair use is one of the pieces of copyright law that creates “breathing space” for free speech, criticism, innovation, and open exchange of ideas.

The four factors of fair use

At its core, fair use ensures that there are some kinds of uses that do not require permission or payment. To help guide decisions of fair use, there are four factors listed in the law.

Each of these factors has been interpreted by courts. Courts are very clear that no single factor decides fair use; each one has to be considered. For each factor, some aspects of a proposed use may fall in the “favors fair use” column, while others may simultaneously “weigh against” fair use. Fair use looks at the whole picture, for each individual use.

Factor 1: purpose and character of the use

This is the only factor that is about how a new user plans to use something. The other three factors are about the existing work that is being used.

Purposes that favor fair use include:

Education
Scholarship and research
News reporting
Criticism
Commentary
Non-profit uses (especially when coupled with one of the other favored purposes)

In contrast, commercial or for-profit purposes weigh against fair use. Purpose example: A commercial use that is also critical may sometimes be fair use; a non-profit critical use is even more likely to be fair use.

Factor 2: nature of the original work

Factors weighing in favor of fair use:

The work is published
The work is “factual”

Factors weighing against fair use:

The work is unpublished
The work is “creative”

With some works, it’s fairly easy to decide whether the work is factual or creative: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film “factual”, or “creative” – or both?

Nature example: Quoting from an unpublished weather diary is more likely to be fair use than quoting from an unpublished novel.

Factor 3: amount and substantiality of the portion used

The first aspect of this factor is how much of the original work you are using, proportional to the original work.

Using a smaller amount of the source work is more likely to be fair use, and using a larger amount is less likely to be fair use. A quote of 250 words from a 300-word poem is less likely to be fair use than a quote of 250 words from a many-thousand-word article.

The second aspect of this factor is whether the part of the work that you are using is “substantial,” or central to the original work. It is less likely to be fair use to use central parts of the work, and more likely to be fair use if you use a more peripheral part of the work.

Whether something is “substantial” is fairly easily understood in some contexts: borrowing the melodic “hook” of a song may be borrowing the “heart” – even if it’s a small part of the song.

Amount & Substantiality example: Copying all the juiciest bits of a new unauthorized celebrity biography before it is published is unlikely to be fair use. But quoting just a couple of them in a book review might be fair use.

Factor 4: effect of the use on the potential market for, or value of, the source work

One way to approach this factor is to ask whether the use in question will substitute for a sale the source’s owner would otherwise make.

Where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.

Market harm example: It’s more likely to be fair use to quote extensively from a book that is out of print, than one just published last week.

But there is also a market for permissions to quote from many out of print books, so a very extensive quotation from even an out of print book might not be fair use if the other factors aren’t in favor.

For a book that is both out of print -and- where there is no market for quotation permissions, fair use would be even more likely.

Rules of fair use

Many people ask for clear rules about what is allowed, and is not allowed, under fair use. But fair use is built to be flexible, so there are not really any clear rules. There are a few people who offer clear rules, but those rules usually have some problems.

Best practices are better guidance

Scholars at American University and other colleagues in many fields have been working to develop codes of best practices in fair use. These best practices are deeply tied to specific contexts of use, instead of offering universal rules. The best practices provide suggestions, compare common activities, and are largely based on input from members of the community of users. Theses Codes are also not legally binding, but do better than hard-and-fast guidelines at acknowledging the flexible (and yes, uncertain) nature of fair use.

Here is a selection of codes of best practice that may be of particular interest to scholars:

Because this approach to fair use has developed relatively recently, many fields have not yet developed codes. Still, you may be able to look at the codes for similar fields to draw parallels between them.

Teaching and educational use

Classroom use

Copyright law places a high value on educational uses. The Classroom Use Exemption only applies in very limited situations, but where it does apply, it is pretty clear — both instructors and students have broad rights to perform or display any works.

This exemption only applies

In a classroom (“or similar place devoted to instruction”)
For people who are there in person, engaged in face-to-face teaching activities
For instruction at a nonprofit educational institution.

If these three conditions aren’t met; the Classroom Use Exemption doesn’t apply.

When the exemption does apply, instructors can play movies and music for their students, at any length (though not from illegitimate copies!). Instructors can show students images or original artworks. Students can perform music, read poems, and act out scenes. And students and instructors can do all these things without seeking permission or giving anyone payment. The law already allows it!

The Classroom Use Exemption only allows performance or display. Making or distributing copies (i.e., handing out readings in class) is not covered by the Classroom Use Exemption (though it might still be allowed sometimes as a fair use.)

The TEACH Act also creates some rights for teaching in the online environment, but it’s more technical and there are a lot more restrictions. Most online teaching relies on fair use.

Course Reserves

Course Reserves is a library service offered to make course materials available to students. Materials can include print/physical items and media. This service allows students access to course-related print materials for free.

Many reserve items are materials already owned by the library. If the library does not own the materials, we will work with you to purchase them. Learn more about placing materials on reserve.

Moodle

Linking directly to licensed library resources, such as articles, ebooks, movies and music is an easy way for your students to access course materials without needing to worry about copyright. Learn more about adding library resources to Moodle.

If you choose to upload your own files, be sure you adhere to the copyright guidelines as outlined in the Faculty Handbook.

Websites

Copyrighted material should not be posted on public websites without access-restrictions. Faculty and staff may provide links to articles from sources that are licensed by the College, since these databases have built-in access restrictions, but articles should not be downloaded and posted where they can be freely accessed and copied.

Transformative use: another lens on fair use

Transformative use is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. A new work based on an old one work is transformative if it uses the source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use!

Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues, and unusual artistic techniques.

Courts have also sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable, and show those copies to people as part of the search results. Courts found that small thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing.

Transformative use is a relatively new part of copyright law, so it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!