Copyright & Fair Use for Education

Fair Use is a legal definition allowing the use of copyrighted materials without permission or specific purposes.  There is no exact formula or percentage of use that defines "Fair Use."  Rather, each instance of "fair use" is determined on an individual basis. The final decision if something falls under the fair use exception is the legal process. 

Individual instructors are responsible for determining if their use of copyrighted materials falls within the fair use exception.

4 criteria are used to help make the Fair Use exception determination.  For each criterion, ask yourself if your particular use favors or disfavors fair use.  If your determination leans toward favorable then you are in a better position than unfavorable on the Fair Use spectrum.

The 4 criteria for Fair Use are: 

1. The Purpose and Character of the Use.  Why are you using the work (Non-commercial is more favorable)?  Have you transformed the work to give new meaning or expression to it?  or is it just a copy?
2. The Nature of the Copyrighted Work. Is the material published or unpublished?  Also, works which are more factual in nature have a higher chance of being declared "fair use."   Highly creative and original works such as fiction, art, and music are not. 
3. The Amount and Substantiality of the Portion Used. There is no formula for determining how much of a copyrighted work you can use.  But using a lesser amount of the work is more favorable than using major amounts.
4. The Effect of the Use on the Potential Market for or Value of the Copyrighted Work. Is the market for the copyrighted work affected by using the work?  The more impact on the market, the less likely courts will recognize fair use. 

Cultural Appropriation and Fair Use

Cultural considerations are not a part Fair Use. Should they be?

Applying the four criteria for fair use is an established practice, but many have observed that the four factors do not always work well with notions of indigenous practice, cultural expressions, or traditional knowledge.  

In other words, a piece of indigenous knowledge may pass all the hurdles of fair use, yet the factors do not take into account the unique relationship many indigenous or traditional communities have with their cultural production.  It is fair use by western legal standards, yet may represent a violation according to the cultural practices and practitioners of that knowledge.

It is especially important to review cultural practices of the information beyond just fair use. Although the use of materials may be "ok" in a legal sense, there may be other factors in play such as ethical use of materials, cultural appropriation, and the "moral" right of producers to determine the fate of their own materials.

For more information, please see:

Two questions that will help guide you on Fair Use are:

1.  Are you doing something new or transformative to the material?

• 6 min video on the nature of transformation for fair use from Julie Ahrens and the Stanford Center for Internet and Society.
• Selective Case laws outlining successful and unsuccessful approaches to transformation.

2. How much of the material are you using?

• Using an entire work does not favor fair use
• Is the amount you are using appropriate?

The following tools may be helpful to help you decide if your use will fall under the Fair Use exception:

Fair Use Evaluator – An online tool, developed by Michael Brewer & ALA Office for Information Technology Policy, to assist educators in evaluating the Fair Use of a copyrighted work.

Fair Use Checklist -- The Copyright Office at Columbia University has created an easy to use checklist (pdf) for determining if using a particular source will fall under fair use.

Thinking Through Fair Use -- An online tool developed by the University of Minnesota Librarians to assist instructors in fair use evaluation.

Where does your use fall on the arrowed spectrum?  This visual tool may help you decide:

"4 Factors of Fair Use" by Georgetown University Library is licensed under CC BY 4.0. 

Using images and permissible amounts of copyrighted material, this video presents an overview of copyright and fair use.