One of the things that copyright experts agree on is fair use is a right we all have. Specifically, fair use is the legal right to use copyrighted works without asking permission from the copyright owner(s). What that looks like in practice varies and depends on an analysis of four different factors, referred to here with the acronym PANE:
The Center for Media and Social Impact at American University is sponsoring development of a growing number of fair use best practice statements that make it easier than ever to know what's fair in areas such as OER, visual arts, online video, dance, images, and more. See also: Code of Best Practices in Fair Use for Academic and Research Libraries.
The best practices statements follow recent trends in court decisions in collapsing the fair use statute's four factors into two questions:
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 they created it, we are not "repurposing" the work for a new audience and therefore it is not transformative.
In cases like these we also look at whether the copyright owner makes licenses to use their 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.
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.
Source: "Fair Use" by University of Texas University of Texas Libraries is licensed under CC BY-NC 2.0
To learn more, see:
Source: Kimmons, Royce. Copyright Basics for Teachers. YouTube. 2016.
There is a lot of confusion around copyright and fair use. What can you use? What can’t you use? How much can you use?
To determine whether you can use something claiming fair use without violating copyright, you need to answer four questions. Keep in mind that all four answers are on a continuum and all of them must be considered. In the end, it comes down to the strength of your argument. (This guide also provides suggestions for how to document that you've worked through these four questions.)
What are you using this content for? All of these fall under fair use: “criticism, comment, news reporting, teaching, scholarship, and research.” In academia, we’re usually pretty safe here. Key concept: Is your use of the source transformative (different from how it was before)? (But this is just Part 1 of the PANE test. Three more parts to go!).
How much of the work are you using? The less you use, the safer you are. Have you heard about the 10% rule where it’s okay to use less than 10% of the original work? Forget it. This little piece of academic lore came from a 1980s court case where a judge opined that you’re probably safe using 10%. There is nothing magical about 10%. While the guidance here isn’t great, the less you use, the safer you are.
What kind of content are you using? Is it more creative or more factual? Copying from a creative work—such as a novel—is more likely to be viewed as a violation of copyright than, say, copying from a factual work—such as a business report. Journal articles are considered a creative work because new information is being created.
Is the author of the work being deprived of monetary gain because of your use of their work? The less you copy, the smaller the economic impact. Effect on the market tends to be a key consideration in fair use cases that have been decided in the courts.
Example 1: You want to use a cartoon you found at gocomics.com to illustrate a concept during class.
Purpose: You’re using it for teaching. You’re probably in the green here.
Amount: You’re using the entire cartoon, not just a small percentage of it. You’re probably in the red here.
Nature of work: Cartoons are creative works. You’re probably in the red here.
Effect on the market: Gocomics.com is a subscription site. People have to pay money to view the comics, so the artists are likely being paid money to have their comics on this website. They may even be paid/receive bonuses per view. If you’re not in the red here, you’re at least in the pink.
Before you delete all of your gocomics.com cartoons from your presentation, let’s do a little research. Gocomics.com has in their FAQ a page on educational use of their cartoons. In that FAQ, you’ll read that “you may use up to seven (7) cartoons per year at no costs as part of our fair use policy.”
Example 2: You want to make some chapters from a textbook available to your students as free, downloadable pdfs in Canvas.
Purpose: You’re using it for teaching. You’re probably in the green here.
Amount: Since you’re using several chapters, that’s quite a bit of the book. You’re probably in the red here. If you’re using just one chapter, you may be on safer ground, especially if that one chapter is just to help students get through the first week of classes while they wait for their textbook to arrive. See effect on the market.
Nature of work: The textbook is a creative work. Some textbooks don’t feel especially creative, but they’re still creative works. You’re probably in the red here.
Effect on the market: If you’re giving students content from the textbook so they don’t have to buy the textbook, that’s a pretty strong economic impact. You’re most certainly in the red here.
Given the number of reds and the strength of those reds, you’re likely violating copyright law if you are using more than one chapter from a textbook. If you’re using only one chapter (and students need to purchase/rent the textbook to access the rest of the chapters), you’re probably okay.
Example 3: You’re showing an entire TV show episode or movie from Netflix to your class via Zoom.
Purpose: You’re using it for teaching. You’re probably in the green here.
Amount: If you’re using the entire video, not just a small clip from it. You’re probably in the red here.
Nature of work: Videos are almost always creative works. You’re probably in the red here.
Effect on the market: Since Netflix is a subscription service, your showing the video to your class means that Netflix is not receiving subscription revenue from each of your students. You’re probably in the red here.
One option is to use just a small clip from the video. Another option is to work with our librarians to see if the Highline College Library already has access to the video or can get a copy of the video that you can use in class. The Highline College Library is guided by some different copyright rules. Our library video licenses come with permission to show the videos to classes. Your Netflix subscription does not.
Only you can make the final determination since you would be the person responsible if there is copyright infringement. Highline’s awesome librarians (who are not copyright experts) can help you think it through (and help you find and link to resources in the library’s databases), but the final decision is yours.
Most copyright experts note that the people who tend to get into copyright trouble are the ones who haven’t thought through the PANE test questions. See below for suggestions about documenting how you worked through these four questions.
Source: PANE content used by permission of Sue Frantz, creator
There are resources to help you document that you considered the PANE questions when determining if fair use applies for you. After you work through PANE using one of these checklist methods, it's recommended that you keep your documentation. If you ever need to explain why you think your use of copyright-protected content is fair use, showing that you considered the questions carefully can help.
Under the checklist tools listed below, check out the video from the Tacoma Community College Library. Starting at about 1:40 in the video, they show an example of how to fill out a checklist to determine fair use.
Source: "Is this Fair Use?" by Tacoma Community College Library is licensed under CC BY-SA 4.0
You may not need to worry about copyright and fair use at all! Many works are not protected by copyright, or are already licensed to you or your institution for the uses you wish to make.
Copyright does not protect, and anyone may freely use:
See the Public Domain guide from the University of Texas Libraries for more information about unprotected works.
Peter Hirtle from Cornell University created an excellent resource about copyright terms that explains the rules for determining whether a protected work is in the public domain. These rules are complex and somewhat hard to describe, partly because they changed many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be summarized as follows:
These are resources that a library subscribes to for use by their users. These are free for the users because the library has already paid an access cost. Similar to Open Access Resources (see below), they can be used but not revised, remixed, retained, or redistributed. Check the Highline College Library's databases and One Search tool for resources related to your course content. The HC librarians are always happy to help you locate content - just ask!
Linking to library-licensed content, and embedding video such as ones from YouTube and library databases like Films on Demand and Kanopy, is an excellent way to ensure you're not infringing copyright. The Highline College Library provides instructions on how to link/embed library-licensed content in your Canvas courses. It’s also best practice to link to resources on the web rather than retaining copies in your Canvas course.
One of the best ways to avoid copyright infringement is to use Open Educational Resources (OER) and Open Access Resources (OAR). You may find exactly what you need with the rights you need to use it, available online for free.
Open Educational Resources (OER) are teaching and learning materials (including textbooks, courses, learning objects, tests, media, etc.) that can be freely used, revised, remixed, retained and redistributed without charge. OER often have a Creative Commons license that states specifically how the material can be used, reused, adapted, and shared. They may also be in the public domain.
Open Access Resources (OAR) are available online free for people to use, but they may not be revised, remixed, retained, or redistributed. Examples include state government documents (U.S. government websites are in the public domain), articles from open access journals, websites, etc.
For information on OER and OAR, see the Faculty Guide to Open Educational Resources (OER). The HC librarians are always happy to help you locate content - just ask!
Full copyright in a work exists from the moment you hit save, put pen to paper, or paintbrush to canvas. OER rely on open licenses, such as Creative Commons (CC) licenses. Copyright is all rights reserved. Creative Commons is some rights reserved.
When you openly license your materials with Creative Commons licenses, you retain copyright to the work. CC licenses work with traditional copyright to enable easier use of things you create, and allow you to reuse work from others. They do this by communicating, in a standardized way, the rights you want to share with others.
For more information, see:
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. Embedding YouTube videos in Canvas courses is similar to this because by embedding, you're also including a link to the original on YouTube.
Sources:
"Fair Use" by University of Texas University of Texas Libraries is licensed under CC BY-NC 2.0
"Creative Commons" by University of Texas Libraries is licensed under CC BY 2.0
If you determined that your use doesn't fall under fair use, then it might be time to get permission from the copyright holder to use the work. This may or may not involve paying a cost to use the material. Getting permission isn't always as easy as it sounds because it can be difficult to identify the copyright holder. (When you cannot identify the copyright holder, you have what is called an orphan work.) Below are some resources that can assist you in getting permission.