Copyright and Fair Use

What is Copyright?

A copyright is a form of legal protection given to creators of creative content to protect their work from being utilized without permission.  Items protected by copyright law consist of literary works, musical compositions, film, software programs, paintings, as well as many other types of creative expression that are fixed in a tangible medium, such as paper, film or computer chip.  Copyright protection begins as soon as the item is created.

Creative Commons licensing is a copyright method that allows for wider and less restrictive sharing of information. Open Educational Resources (OER) and produced under Creative Commons licenses. There are six Creative Commons licenses that give a user varying degrees of freedom to use a resource.    

Public domain materials are the only materials with no copyright whatsoever. Materials in the public domain can be freely used with no attribution to the creator. All copyright for the material has been waived, either because the copyright has expired or the creator has voluntarily waived copyright.

What is Fair Use?

Fair use is a legal doctrine that promotes freedom of expression by permitting, in certain instances, the use of copyright protected works without permission.  Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses that may constitute fair use.  Potential permitted uses include criticism, parody,  comment, news reporting , scholarship, research, and education.   Not all uses in an academic context, however, are automatically considered fair use.

Fair use is not an exception to copyright compliance; rather, it is more of a "legal defense." That is, if you copy and share a copyright-protected work and the copyright holder claims copyright infringement, you may be able to claim a defense of fair use which would then have to be proven in a court of law .

The Copyright Act does not spell out the specific types of content reproduction that qualify as fair use; rather it offers an outline as to how to analyze whether fair use may apply in a particular situation. As a result, the Copyright Act leaves it up to the individual to determine whether fair use applies in each particular circumstance. To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of "when in doubt, obtain permission."

Determining Fair Use

The only way to get a definitive answer on whether something constitutes fair use is to have it resolved in court by a judge.  Judges use four factors in determining fair use:

1. The purpose and character of the use - for example, is the use commercial in nature or is it for non-profit educational purposes?  If the use is for financial or other business-related gain, it would be difficult to prove fair use. Is the use transformative, in other words, using the original work for a completely different purpose? This could be considered fair use.
2. The nature of the copyrighted work - if the work is non-fiction, it would be more likely to be covered under Fair Use than if it was a creative, original work. 
3. The amount and substantiality of the portion taken - there is no set percentage of a work that is considered "too much" under Fair Use.  Courts use a common-sense approach to determining whether what is being used is too much, or too important to, the copyrighted work, to constitute Fair Use (note the subjective nature of the decision-making process in the Courts).
4. The effect of the use upon the potential market - does the nature of the use diminish the value of the work or its future income potential?

It is important to note that the above are only guidelines, are weighed in combination with each other to different degrees in each case, and judges have a great deal of flexibility when making a decision on fair use.

The following link is for a Fair Use Checklist, which should be used in determining whether an item might be considered exempt from copyright under the Fair Use provision.  The Fair Use Checklist is licensed by a Creative Commons License with attribution to the original creators of the checklist Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Butler (University of Louisville).

What are Coursepacks?

A coursepack consists of material selected by an instructor for distribution to students.  Coursepacks generally include copies from journals, magazines, newspapers, books, among other sources.  Coursepacks are not considered Fair Use. Copyright permission must be obtained for all materials used in a coursepack unless the material has a Creative Commons license. 

Request a coursepack.