Copyright, Open Access, Fair Use & Public Domain

Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work--but an important limitation is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

There are four factors to be considered in determining Fair Use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

*NOTE: Not all non-profit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose!

The Copyright Act contains some specific exceptions for the use of copyright-protected materials by academic institutions.

These provisions include:

• Section 107 on fair use, which applies to activities such as the use of excerpts for illustration or comment; the unexpected and spontaneous reproduction of classroom materials, and the creation of parodies.
• Section 108 on reproduction by libraries and archives, which applies to activities such as archiving; replacing lost, damaged or obsolete copies; patron requests for entire works; and interlibrary loans.
• Section 109 on first sale, which permits the resale or lending of copies of works, providing the basis for library lending and the sale of used books.
• Section 110 on the use of materials in an educational setting, which permits certain types of content use in the classroom and in distance education.

Fair Use Best Practices for Teaching Faculty:

• Use articles and materials to which the University has electronic licensing rights.
• Use works in the public domain.
• Create and use your own authored materials.
• Obtain permission from copyright owners.
• Limit distribution of a work to students enrolled in your course.
• Limit distribution of a work to a time-period that corresponds to the duration of your course.
• It is best to refer to the Four Factors of Fair Use (see below), and conduct individual Fair Use analysis for every work you wish to reproduce and distribute to a class with documentation of your Fair Use analysis.

*NOTE: Primary areas of concern involve faculty distributing copyrighted materials through publicly accessible online platforms (e.g. personal website, faculty webpage or university social media) that enable access to these materials beyond the students specifically enrolled in your course. 

Fair Use Best Practices for Students:

• Use only so much of a work as you need to complete your academic assignment.
• Limit distribution of a work to fellow classmates and professor.

*NOTE: Primary areas of concern involve students distributing copyrighted materials through publicly accessible online platforms (e.g. website used for course assignments, like WordPress or Wix) that enable access to these materials beyond fellow students enrolled and faculty members.

FAIR USE FACTOR #1: THE PURPOSE AND CHARACTER OF THE USE

FAIR USE FACTOR #2: THE NATURE OF THE COPYRIGHTED WORK

*The unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The Courts reason that copyright owners should have the right to determine the circumstances of “first publication.”

**Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works. 

***Use of a work that is commercially available specifically for the educational market is generally disfavored and is likely to be considered copyright violation.

FAIR USE FACTOR #3: THE AMOUNT OR SUBSTANTIALITY OF THE PORTION USED

*Courts have ruled that even the use of small amounts of an overall work may be excessive if they encompass the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it would be considered the most extraordinary or creative element of the film. Similarly, it might be acceptable to quote a relatively small portion of a newspaper article, but not if what you are quoting is the "scoop" the journalist uncovered.

FAIR USE FACTOR #4: THE EFFECT OF THE USE ON THE POTENTIAL MARKET FOR OR VALUE OF THE WORK

*For example, if there is not an electronic copy of a chapter within a book, or if a film has not been converted into a streaming media file. If faculty could easily obtain a licensed copy of the work in the desired format, or could easily obtain a licensing agreement for the work after creating a modified format (e.g. a scanned copy of the chapter) Fair Use claims are undermined. 

Approximating permissible amounts of Copyrighted Materials covered under Fair Use

After establishing a context where Fair Use would apply, how much of an original work is permissible to use without a licensing agreement?

Motion Graphics

• Includes videotapes, DVDs, Blu-ray, Laserdiscs, Multimedia encyclopedias, QuickTime movies, video clips from the Internet
• The material must be a legal copy and legitimately acquired
• Must give proper attribution to copyright holder
• Video can be downloaded for use in multimedia educational projects 
• 10 %, or 3 minutes whichever is less

Textual Materials

• Must be from a legally acquired copy
• Poem less than 250 words; 250 word excerpt of poem greater than 250 words
• Articles, stories, or essays less than 2,500 words
• One chart, picture, or cartoon per book or per periodical issue
• Two pages (maximum) from an illustrated work less than 2,500 words (e.g. a children’s book)
• Excerpt from a longer work, 10% of work or 1,000 words, whichever is less

Music recordings, lyrics, and music videos

• Includes records, cassette tapes, CDs, audio clips on the Web
• Project must have an educational purpose
• Sound files may be downloaded for use in multimedia educational projects
• Up to 10% of a copyrighted musical composition may be reproduced, performed, and displayed, but only a maximum of 30 seconds can be used

Illustrations and Photographs

• Includes photographs, illustrations, and collections of photographs or illustrations
• Check that older illustrations in the public domain are not part of a collection of works still under copyright
• Images on the Internet may be downloaded for student projects and teacher lessons
• A single work in its entirety
• No more than 5 images by a single artist
• Not more than 15 images from a collection, or 10 %, whichever is less