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Last Updated: Aug 4, 2015 URL: http://library.morgan.edu/content.php?pid=354084 Print Guide RSS Updates

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Fair Use

 And Fair Use

Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107)

Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy

Digital Copyright Slider Is it Copyright Protected?

 

Copyright

Copyright is not an easy subject, and it only gets more complicated as you factor in questions of fair use for educational purposes. If you look to the box on your left—Educational Fair Use on the Web—you will see different but similar takes on the question of educational fair use. While they stick to the same rough basics, the scope and intent feels different. This is partially because the some are written and maintained by educational institutions, and one is by the American Association of Publishers, but it is also because copyright, and specifically fair use, has points on which it is specific and unbendable, and other points where there is gray area and interpretation. It is the attempt of this page to try and break down the basic information for you and provide a little bit of clarity, while also providing links to official, legal documents that cover these issues.

What is Copyright?

Copyright, as defined by the US Copyright Office's Copyright Basics (pdf) is "a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of 'original works of authorship', including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works." [Emphasis mine] In short, it is the right by the work's creator to have reasonable expectations of control over their work and, to various degress, derivative works from it.

What is Fair Use?

Fair use is almost exactly what it sounds like. It is the ability of others to make use of copyrighted work in a fair manner. Fair both to the original creator (e.g., they don't have to worry about someone randomly using their work for profit) and to the person using the original work (i.e. they don't have to fill out forms in triplicate just to quote an article). Keep in mind, though, in the online circular Fair Use, the Copyright Office notes: "The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission." While specific guidelines, to a degree, have been laid down for educators making handouts and such for a classroom (and these will be touched upon, later), most use relies on the judgement of four watchwords:

  • Purpose (i.e. Why are you using the copyrighted work?)
  • Nature of Work (i.e. What kind of work is copyrighted?)
  • Brevity (i.e. How much are you copying?)
  • Effect (i.e. What impact would your use have on the original work?)

Why is Fair Use Important to Students and Educators?

Students and educators have to quote and sample other works for assignments, research projects, papers, conference presentations, lectures, and in discussion. In other words, fair use means a lot to the process of learning, teaching, and exploring topics. Think of the number of times you have to use someone else's copyrighted work in order to complete just one ten page paper or one "make a website about your favorite hobby" assignment. Realizing this, the US Copyright Office specifies "for nonprofit educational purposes" as a consideration for fair use [see other quote to the right of this]. If a student had to contact every copyright holder to get permission to do an assignment, or if a professor had to pay a fee in order to include a graphic in a Powerpoint presentation, the ability to learn and research and study and teach would be greatly, and negatively, impacted.

This means that educational fair use is not only an important, but vital, right. It is not absolute, though, and the next section will touch upon some of the dos and don'ts associated.

What Is or Isn't Fair Use in an Educational Setting?

The Copyright Office has laid out a few guidelines that sort of set the minimums and maximums of what counts for educational fair use, if you are on the educator side of the bracket. You can read them all in the recommended (and not, relatively speaking, overly long): Reproduction of Copyrighted Works by Educators and Librarians (pdf). Down in the section titled "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals" (page 6 of the document), you will see some specific amounts set forth for teachers making copies for class (or for those making copies on behalf of a teacher's lessons):

  • Only as many copies as there are students in the class.
  • Copyright notice must be given for copies made.
  • Poetry may be copied up to 250 lines.
  • Prose may be copied up to (a) 2500 words if that is the entire piece, (b) 1000 words of a longer piece, or (c) 10%. A minimum of 500 words may be copied.
  • These copies can not be made to avoid paying a fee for a workbook or anthology.

If you notice, this still fails to go into details about what a student can use. The answer? At least the best answer you are going to get? Look to the four watch words above. Are you quoting/referencing short, necessary bits in a paper that will only be seen, at most, by your professor and classmates? Then generally speaking, fair use will cover the majority of what you do.

When in doubt, see: Checking the Copyright Status of a Work (pdf), and keep the use the material in question down to what fulfills and enhances the assignment. Do not quote a page when a couple of lines will suffice.

Note: attribution is not enough to waive aside copyright infringement. That's more or less a direct quote from the same "Fair Use" document linked to above: "Acknowledging the source of the copyrighted material does not substitute for obtaining permission." If you are going behind a short quote/paraphrase, go ahead and try to get permission.

Public Domain

The Public Domain is a special category of works that are outside of copyright (generically speaking, but this is not a universally true statement when factoring in other issues like Creative Commons that add to the heady stew that is the copyright issue). What qualifies for the public domain can be a confusing. Some examples include

  • Books written before 1923.
  • Books whose authors have been dead for 70 years.
  • Movies who have not filled out proper copyright registration or have allowed it to lapse.
  • Media made by a corporation 95 or 120 years ago (or, maybe, before 1923?)

If you get the sense that some of those numbers conflict, then you are on the right track. Any browsing through something like The Internet Archive or Project Gutenberg (both of which store large amounts of public domain works) will find some subset of works that appears to be copyrighted in every way except for the fact that it is not. Simply put, public domain status is not something that can be assumed because of some heuristic, and often requires a series of document checks except in the case of a few givens (Dracula, the book, is public domain for sure). One of the best tools to use is The US Copyright Office's own Catalog of Copyrights. If you see the "How to check" document linked above and up on the left sidebar, there are addresses you can write to (and send a fee to) in order to have someone double check. Using the aforelinked CoC to check the status of the book The Galactic Pot Healer, I can find that the copyright is currently held by Laura Coelho, Christopher Dick, and Isolde Hackett. And it was renewed in 1997. Since Philip K Dick, the author, died in 1982, that means the copyright will be up in 2052, assuming things do not otherwise change (and they will change, and no one will be able to predict how, unfortunately).

What does a work being in the public domain change? Depends on what you need, but maybe not a super whole lot. While you can make derivative works and quote whole public domain poems and short stories, and copy until your heart or Flex Account is content, this does not mean you are able to use the work without citing or giving credit (unless you wish to commit plagiarism). Just because Tom Sawyer is public domain does not mean that you can claim you wrote it.

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