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Fair use of copyrighted materials

 

Intro | First steps | Quick guides to fair use in context | Four-factor test | Permission

 

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 Social Media and Washington School of Law at American University are sponsoring development of a growing number of 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 Georgia State Electronic Course Materials 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 availability of a license weights 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, IUPUI's Fair Use Checklist, UMUC's Copyright and Fair Use in the Classroom, on the Internet and the World Wide Web, University of Minnesota Libraries' Fair Use Analysis Tool, and the many wonderful statements of Fair Use Best Practices published by or with the Center for Social Media and Washington School of Law, 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.

First steps

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.

1. Unprotected works

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 by 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, many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be sumarized as follows:

2. Library-licensed works

Check your library's databases and catalogs. They may already have just what you need.

3. 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.

4. Is the work available freely on the open Web without an express permissions statement,
and therefor 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

As described above, 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 course 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 to:

Always include

Limit access to the appropriate groups, such as students enrolled in a class and administrative staff, as needed

Terminate access at the end of the class term when appropriate

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 educstional audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.

Limit access to all images, audio and audiovusual 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

Research copies

Making copies as part of the research process may or may not be transformative.

Limit research copies to

Using the four factor fair use test

If the quick guides above are insufficient for your needs, and there is no Best Practices statement that you feel you can reasonably adapt to your situation, you can try your hand at using the fair use test directly.

With a particular use in mind,

The four fair use factors:

  1. What is the character of the use?

  2. What is the nature of the work to be used?

  3. How much of the work will you use?

  4. What effect would this use have on the market for the original or for permissions
    if the use were widespread?

 

FACTOR 1: What is the character of the use?

  • Criticism
  • Commentary
  • Newsreporting
  • Parody
  • Repurposing a work, providing a new context, or otherwise adding value
    to the work
  • Nonprofit
  • Educational
  • Personal
  • Commercial

Uses on the left are examples of transformative purposes that tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle support a determination of fair use, even if there is no transformative purpose. They also add weight to a transformative fair use claim. But even commercial uses can be fair when they involve repurposing of content, or adding value to it, such as but not limited to parody, criticism and commentary.

The uses on the left are strongly transformative when they use a work in a new way and serve a new market from the one the original was intended to serve. For example, using a small image of a poster to illustrate a timeline is transformative; creating a parody of a song is transformative; scholarly criticism that quotes to illustrate a point is transformative; a model's glossy photo used in a news report is transformative. All of these are examples of cases where commercial uses of an appropriate amount of another's work were found to be fair uses.

 

FACTOR 2: What is the nature of the work to be used?

  • Fact
  • Published
  • A mixture of factual and imaginative
  • Imaginative
  • Unpublished

Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses described in the middle tend to have little effect on the balance, more or less cancelling out this factor entirely.

Which way is your balance tipping after assessing the first two factors?

 

FACTOR 3: How much of the work will you use?

  • Small amount (ex: 1 chapter; 10%)
  • An appropriate amount for a transformative purpose
 
  • More than a small amount or the amount needed to accomplish a transformative purpose

This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if you conclude under the first factor that your purpose is transformative, you can use an amount of the work that is appropriate to accomplish that purpose. Notice how nuanced the interaction of these factors can be: A nonprofit transformative use of a whole work might weigh in favor of fair use if the amount is appropriate for the purpose. A commercial use of a whole work would normally weigh significantly against fair use, unless the whole work were the appropriate amount to accomplish that purpose. The examples provided under factor one above illustrate this.

Typically, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers normally have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.

Which way does your balance tip after assessing the first three factors? The answer to this question may be important in the analysis of the fourth factor!

 

FACTOR 4: If this kind of use were widespread, what effect would it have
on the market for the original or for permissions?

  • Proposed use is transformative and not merely duplicative (first factor) and amount used is appropriate for the transformative purpose (third factor)
  • Proposed use is not transformative, but amount is small (10%/1 chapter)
  • Original is out of print or otherwise unavailable
  • Copyright owner is unidentifiable
  • No license of the type you want
  • Password protection; technological protection
  • Use is not transformative
  • Competes with (takes away
    sales from) the original
  • Avoids payment for permission
    (royalties) in an established
    market for licenses of the type
    that you desire

The first three factors affect the analysis of this factor. In most cases, three things come together here: whether your use is transformative; whether the amount you used is appropriate for the transformative purpose; and whether there is an efficient and effective market offering a license to use the work in the way you want to use it.

As always, uses on the left weigh in favor of fair use; those on the right weigh in favor of getting permisison. In the middle, uses will reduce the risk associated with relying on fair use when there is a market for that work by protecting the work from possible negative effects of exposure.

In the last 15 years we have seen that courts will tend not to take the availability of licenses into account if the proposed use is transformative and uses an appropriate amount. But if the use is not transformative, the market matters a lot. In a case (Georgia State) that applied fair use to creating digital copies for use as online course materials in a nonprofit educational setting, digitizing and distributing others' works for a similar purpose and for a similar audience to those the original author and publisher intended was only fair when either 1) the amount used was limited to 10% of shorter works (9 or fewer chapters, total, and works not divided into chapters) or 1 chapter from longer works (those containing 10 or more chapters) or 2) there was no license available for the type of use desired. If a license was available, the amounts had to be kept within the limits described, in nearly every case. Please see Georgia State Electronic Course Materials Case for more detailed discussion.

In summary, transformative uses of appropriate amounts tend to be fair even if there is a license available. Non-transformative uses of materials for which there is a license of the type you need, readily available, require that you use only small parts (the 10%/1 chapter amounts the Georgia State Court utilized), and employ protections described in the center of the paradigm above to reduce the risk of harm to the copyright owner.

How do you feel about the balance for your use after consideration of all four factors?

 
Need another source of authority to use a work?

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 the Creative Commons, and in Content on the Web and Managing your copyrights.

More information

If you are associated with the University of Texas System as faculty, staff or student and have questions about the application of the four factor fair use test, please let me know.

Need more information? The Copyright Crash Course contains detailed materials on many other copyright issues.



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