Copyright & Fair Use: An FAQ

by Christine Scherer

Copyright and fair use are important fields in education, especially distance learning. However, they can also be daunting concepts to understand and apply. The following frequently asked questions, along with their answers, should help to make copyright and fair use a little easier to understand.

What is copyright?

The legal right to be the only one to reproduce, publish, and sell a book, recording, image, etc. (aka a published work) for a certain period of time.

  • Meant to ensure that creators are fairly compensated for their work.
  • Gives copyright holders control over where, when, and how their work is reproduced and redistributed.
  • To share a copy of the work, a user must have permission from the copyright holder.

What’s covered by copyright? What isn’t?

  • Some published works fall outside of copyright protections. These include:
    • Anything published by the United States federal government
    • Facts (ex., the Earth revolves around the sun), formulas (ex., a² + b² = c²), theories, research methods, and statistical techniques
    • Public domain works: works to which no one holds the copyright
    • Works for which the copyright has expired
    • Orphan works: works with no identifiable copyright holder
  • Anything not on that list is assumed to be covered by copyright.
  • Even if something is freely available online, it is still protected by copyright.

What is Fair Use?

  • Fair use is a set of factors that must be considered when determining if a reproduction of a copyrighted work is actually a permissible use of the work.
  • In legal cases, the factors are assessed and applied; there are few strict, hard rules surrounding fair use.
  • Not all factors are weighted equally; some carry more power than others.

Factor One: Purpose and Character of Use

Why is this copyrighted material being used? What is the context and purpose of the reproduction?

  • Fair Use: non-profit/educational, teaching or research, transformative use, access is restricted
  • Not Fair Use: for profit, broad distribution, not properly attributed, trying to avoid a fee, used for entertainment only

Transformative use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” If transformative use can be proven, it’s almost always fair use.

Factor Two: Nature of the Work

What is the work being reproduced?

  • Fair Use: published work, non-fiction/fact-focused, not sold in educational market
  • Not Fair Use: unpublished work, fiction/highly creative, sold in educational market

This is slightly backwards from what you’d initially expect in regards to the educational market. However, consider this example: a five-minute clip from a commercially available mass-market film that was not created for an educational purpose is used in a classroom. This is fair use because the use is considered transformative–you’re using the material in a way that differs from its original intent. (In addition, the quantity used is small and there is likely to be little impact on market value–the next two factors). However, a chapter from a textbook, which was clearly produced for an educational context, is not transformed in any way by its use in a classroom setting. This is why textbook chapters must go through course reserves so the library can request permission from the copyright holder to use them.

Factor Three: Quality and Quantity Used

How much of the work is reproduced? Does the work still have value if this reproduction is shared?

  • Fair Use: small quantity, portion is edited to fit specific purpose, qualitatively insignificant
  • Not Fair Use: large quantity, portion is central to work or qualitatively significant (for example, the final chapter of a mystery novel), portion used exceeds what is necessary

Factor Four: Effect on Market and Value of Work

Will this reproduction harm the economic value of the work? Will the copyright holder lose money?

  • Fair Use: reproduction is lawfully obtained, insignificant impact on market value, few copies are available
  • Not Fair Use: reproduction was illegally obtained, significant impact on market value, context for redistribution is insecure (for example, posted freely on a public website)

This is the piracy factor. It’s also the one that tends to be given the most weight in court cases.

What’s the difference between copyright violation and plagiarism?

  • Copyright violation means reusing, reproducing, or redistributing work without the permission of the creator. You can violate copyright even with a citation.
  • Plagiarism means presenting someone else’s work as your own. You can copy text from a public domain work and not violate copyright, but if you don’t provide a citation, you’ve committed plagiarism.

To learn more about copyright, visit the Copyright Guidelines page, or contact Content Specialist Christine Scherer with questions.

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