Module 3: Copyright & Fair Use

  1. What is Copyright?
  2. Why Educators Should Be Aware of Copyright
  3. Open Licenses
  4. Public Domain
    1. How does a copyright term expire? How does a work enter the public domain? 
    2. What is the difference between public domain and open license?
  5. What is Fair Use?
    1. Four Factors of Fair Use
    2. The TEACH Act
    3. Analyzing My Use: Applying the Copyright Framework
      1. 1. Is the work protected by copyright?
      2. 2. Is there a specific exception in copyright law that covers my use?
      3. 4. Is my use covered by fair use?
      4. 5. Do I need permission from the copyright owner for my use?
  6. Knowledge Check
  7. Learn More
  8. Attributions

Learning Objectives

By the end of this module you should be able to: 

  • List the exclusive rights of authors and content creators under U.S. copyright law.  
  • Understand how works enter the public domain
  • Identify and understand each element of the Creative Commons licenses
  • Conduct a four-factor fair use analysis to see if a copyrighted work can be used lawfully 

According to the US Copyright Office, copyright is a “form of protection provided by the laws of the United States to the authors of ‘original works of authorship’ that are fixed in a tangible form of expression.” There are a few key words or phrases to examine in this definition. 

First, original works of authorship are defined as any work made by a human creator. Types of work that can be copyrighted include literary works (e.g., stories or poems), musical works (e.g., musical compositions and sound recordings), dramatic works (e.g., plays and films), spoken word recordings, visual works (e.g., paintings, drawings, digital work, sculptures, architectural works) and more.

The law requires that the copyrighted work include a minimal amount of creativity – it should have a spark of an original idea or expression. This is an important distinguishing factor because there are some works produced by humans that are not covered by copyright, including titles, names, short phrases, or familiar symbols. Copyright also does not protect ideas, methods, processes, concepts, or discoveries. 

The definition also explains that the work should be fixed in a tangible form of expression. This means that an original work is protected automatically the moment a creator writes it down, records it, or produces it in a form that can be viewed, shared, or communicated with others. The creator does not need to register the work to be covered by copyright, although registration is necessary to enforce rights of copyright in the case of litigation. Copyright does NOT protect unfixed work, such as an impromptu speech that has not been written down.

Although issues of copyright may seem like they’re more in the wheelhouse of lawyers than educators, the fact is that copyright holders have brought suit against educational institutions for perceived copyright infringement (such as a recent case in Ohio and another in California). 

Although the judges in both cases cited above ruled in favor of the educational institutions, the fact that these lawsuits were brought at all demonstrates that copyright holders are willing to bring their cases to court if they feel their copyright has been infringed upon – even by educational institutions. And threat of lawsuits aside, it is important to give appropriate credit to the creator of a work in a fair and legal manner.

This is all the more reason to be aware of open licenses, public domain, and fair use.

Open Licenses

Open licenses allow an original creator to clearly inform others what they can and cannot do with a copyrighted work. When using openly licensed material, there is no need to contact the original author to ask permission; the license tells you all you need to know. Creative Commons (CC) is the organization that provides the predominant standards for open licenses. In Module 4 you will learn more about the six different CC license options and the spectrum of permissions they offer creators.

The copyright status and/or license applied to a work determines what you can and cannot do with the creative work of someone else. Knowing how to identify and differentiate between different types of copyright status will be useful when determining the content you may reuse, and how. You should assume that a work is all-rights-reserved, unless the creator explicitly states otherwise (via CC license or direct permission). As you search for OER, you will become familiar with the markings of each copyright type.

Public Domain

Public domain refers to works that are not protected by copyright. They belong to the public and can be used in any way without permission from the creator(s). This is different from public availability. The availability of a document online has nothing to do with its copyright status.

Works can enter the public domain in the following ways:

  • Copyright term has expired.
  • The creator(s) failed to comply with copyright requirements at the time of publication or failed to renew copyright once the original term expired. (Pre-1992 copyright law requires this).
  • The work is something that cannot be copyrighted, like facts, short phrases, ideas, or government documents.
  • The copyright owner has dedicated the work to the public domain.

Let’s take a closer look at the first item on this list.

Generally, copyright spans the lifetime of the author, plus 70 years. This is safe to assume for works created in or after 1978, when the present-day copyright term was codified. But it is not the case for all works. Determining if a work is in the public domain can be difficult, because the terms of copyright protection in the United States have changed over time. The Cornell University Library Copyright Information Center is a useful tool for understanding what works might fall into the public domain.

What is the difference between public domain and open license?

It is important to understand the difference between public domain and open licensing (Creative Commons). They both grant free access to the materials, but the scope and nature are completely different.

Open licensing recognizes clear ownership of intellectual property, and openly licensed works are still protected under copyright law, whereas works in the public domain are not protected by copyright law. Therefore, users are required to follow the license requirements when using openly licensed materials. This does not apply to public domain works.

This infographic illustrates the differences between public domain, open license, and all rights reserved copyright: 

Public domain: copyright ownership waived. Author gives away rights to the public. "It's not mine. I give up my right as an author. You don't even have to cite me, although I would appreciate it." Open license: copyright ownership retained. Author grants rights in advance. "It's mine, but I DO allow you to take my material. No need to ask my permission to use it because it's already granted. Just ensure to make a proper attribution to me." All rights reserved copyright: copyright ownership retained. Author does NOT grant rights to the public. "It is mine. I do NOT allow you to take this material and repurpose it. You definitely need to ask for my permission to use it."

Image adapted from: “Relationship between the public domain, open license, and all rights reserved copyright” by Boyoung Chae, licensed under CC-BY 3.0.  

The power of open licensing lies in its ability to clearly communicate how the creator intends the work to be used. A creator can explicitly share the work and control the licensing provisions while retaining ownership. Remember, for a work without a copyright notice, all-rights-reserved status is assumed. If you want to openly share your OER with your students and faculty peers, or publish it online for the world to access, displaying an open license with the work ensures it will be easily and clearly adopted in the way you intend.

What is Fair Use?

As introduced in Section 107 of the Copyright Act, fair use is a doctrine that allows for users to make limited use of an original, all-rights-reserved work without asking for the creator’s permission. It applies to any work, regardless of the medium or format. 

In an educational setting, this doctrine may allow faculty to display or reference another author’s work in the classroom. However, just because a use is educational does not mean it’s a fair use. Each use of an all-rights-reserved work should be determined on a case-by-case basis.

Whether or not a specific use falls under fair use is determined by four factors:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market

Determining whether your use of a copyrighted material is covered by fair use is a two-tiered process. First, we can examine whether our use of a copyrighted work is in favor of fair use by examining four factors related to our use. Second, we should consider whether the way in which we are using a work is transformative in nature. Let’s look at each of these.

Four Factors of Fair Use

  1. First, you should carefully consider the purpose and character of your use. In most cases, those uses that are educational in nature or are done to comment, report, or critique works are considered fair use. Those that are done for commercial purposes typically are not considered fair use. This does not mean, however, that all educational uses are fair and all commercial uses are not fair. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. Remember that we are looking for a balance of factors in our evaluation process. Remember that we are looking for a balance of factors in our evaluation process. 
  2. The second factor considers the nature of the copyrighted work. Factual work like news or research articles tend to favor fair use. More creative or imaginative works like novels, movies, and musical recordings, are less likely to support a fair use. 
  3. The third factor considers the portion of the copyrighted work used. Smaller portions tend to be more favorable than large portions, though there are no formal guidelines for how much of a work can be used. There may be some cases where the use of an entire work is still covered by fair use. The quality of the portion used is also considered within the third factor. If the portion is central to the work it is less likely to be considered fair use. 
  4. Finally, the fourth factor looks at the impact on the effect upon the potential market or value of the copyrighted work. Works that are lawfully acquired and used in smaller quantities for a limited time are not likely to impact the future market of the work. However, using large portions of a work and distributing numerous copies repeatedly could harm the copyright owner’s potential market.

The TEACH Act

The TEACH Act is the Technology, Education, and Copyright Harmonization Act of 2002. It came about because previous versions of the Copyright Act were drafted well before the growth of online education, and instructors found that online education might require different allowances be made for copyrighted works. The TEACH allows for instructors to make use of digital teaching materials without first obtaining permission from the copyright owner. 

The TEACH Act is different from fair use, but as Penn State University explains, “If fair use permits a particular use of material, it is not necessary to consider the TEACH act.” In other words, in most cases it is sufficient to simply apply the fair use framework (below). 

To learn more about the TEACH Act and its specifics, see Cornell University’s Library copyright resources. 

To deal with uncertainty, the copyright framework’s goal is to break down the copyright laws into a series of five questions we can ask to help us determine whether our use is legal. These questions build on each other and should be answered in the order they are presented. These questions include:

  1. Is the work protected by copyright?
  2. Is there a specific exception in copyright law that covers my use?
  3. Is there a license that covers my use?
  4. Is my use considered fair use?
  5. Do I need permission from the copyright owner for my use?

This module can be used to help you answer these questions. If you are unable to answer any of them, refer back to the information presented here. 

Let’s take a closer look at each of these.

The first question aims to identify whether the work you intend to use is covered by copyright.

  • Is the work protected by copyright? Is it in the public domain?
  • If I wrote it, do I still own copyright or did I sign over my rights to someone else? Was the work created under a work for hire contract?

If the work is in the public domain or if you own the copyright, then you may skip all the questions below as your use is lawful. If the work is protected by copyright or you created the work but signed over your ownership, you will need to move further through the framework.

  • Is my intended use covered by an exception such as laws for libraries? 

Many licensed works available through your library’s electronic journals and databases are covered under this exception but make sure to contact your college’s library for more information. 

  • Is my intended use covered by an educational exception such as Section 110 of the Copyright Act or the TEACH Act? 

While both allow for the use of copyrighted materials in an educational setting, the TEACH Act has some limitations and restrictions on use. 

Even if you determine that your use is covered under the TEACH Act, you may still want to continue through this framework to see if other criteria will cover your use.

4. Is my use covered by fair use?

Consider the four factors of fair use, including the purpose of the use, the nature of the use, the amount of the work used, and the effects of the use on the market.

Remember that fair use is a balancing act and all four factors should be considered holistically. 

You should also consider whether your use is transformative in nature.

Finally, if your use is not covered by the above questions, you will need to ask for permission to use the work. First, locate the copyright owner and fully explain your intended use in your permission request. If you do not receive a response or the answer is no, reconsider if you can make your use a fair use or consider using another work.

Knowledge Check

Use the copyright scenarios below as a self-reflection. For each, consider applying the “Copyright Framework for Analyzing My Use” questions above to determine whether this use of a work is covered under copyright. Please note that these are suggestions and do not constitute legal advice. Make sure to use your own analysis or consult a legal expert for advice.

  • Case Study #1: The cost of your textbook has skyrocketed and you’d like to make copies of the book so you can save your students money. 
  • Case Study #2: You have a fantastic historical video that you use to help teach students about World War II. Unfortunately, it is on an old VHS. You’ve looked to see if you can buy it on DVD but it is not available in this format.
  • Case Study #3: You teach American Literature every semester and would like to distribute a copied journal article that analyzes a short story each time you teach the class. 
  • Case Study #4: You would like to show a copyrighted video in its entirety to your class for instructional purposes.
  • Case Study #5: You plan on showing your students an instructional presentation that includes displaying copyrighted photographs and incorporates copyrighted music.
  • Case Study #6: You plan on sharing with your students an exemplary research paper created by a former student so they know how to format their upcoming assignment. 

Learn More

Copyright.gov: https://www.copyright.gov/ 

Creative Commons: https://creativecommons.org/ 

Center for Media and Social Impact’s Code of Best Practices for fair use: https://cmsimpact.org/report-list/codes/

Copyright Crash Course

Public Domain Resources

Attributions

About the Licenses. (n.d.). Creative Commons. Retrieved July 20, 2022, from https://creativecommons.org/licenses/

Circular 1: Copyright basics. (2021, September). Copyright.gov. Retrieved July 20, 2022, from https://www.copyright.gov/circs/circ01.pdf

Copyright at Cornell Libraries: Copyright term and the public domain. (2022, March 17). Cornell University Library. Retrieved July 20, 2022, from https://guides.library.cornell.edu/copyright/publicdomain

Fair use checklist. (n.d.). Columbia University Libraries. Retrieved July 20, 2022, from https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html

Harper, G., & Copyright Crash Course. (2022, January 3). Fair use. University of Texas Libraries. Retrieved July 20, 2022, from https://guides.lib.utexas.edu/fairuse/home

Harper, G., & Copyright Crash Course. (2022, January 3). Public domain. University of Texas Libraries. Retrieved July 20, 2022, from https://guides.lib.utexas.edu/pd/info

Harper, G., & Copyright Crash Course. (2022, March 21). Creative Commons. University of Texas Libraries. Retrieved July 20, 2022, from https://guides.lib.utexas.edu/cc/home

Harper, G., & Copyright Crash Course. (2022, June 22). Copyright crash course. University of Texas Libraries. Retrieved July 20, 2022, from https://guides.lib.utexas.edu/copyright/home

Hoon, P. (2007). Using copyrighted works in your teaching – FAQ: Questions faculty and teaching assistants need to ask themselves frequently. Know Your Copyrights. Retrieved July 20, 2022, from http://www.knowyourcopyrights.org/storage/documents/kycrfaq.pdf

More information on fair use. (n.d.). Copyright.gov. Retrieved July 20, 2022, from https://www.copyright.gov/fair-use/more-info.html

Smith, K., & Macklin, L. (2014). A framework for analyzing any U.S. copyright problem. KU ScholarWorks. https://kuscholarworks.ku.edu/handle/1808/22723

What is copyright? (n.d.). Copyright.gov. Retrieved July 20, 2022, from https://www.copyright.gov/what-is-copyright/

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