Fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as commentary, criticism, or parody. "Fair" uses do not require permission from the copyright owner. This article explains fair use, particularly with respect to education.
Determining fair use
There is, unfortunately, no simple definition of "fair use." It is a right set forth in he U.S. Copyright Act, but how and when it may be applied is left to the discretion of judges and juries. Be aware that no guidelines provided in this article are guaranteed to be accepted by all courts!
Four factors determining fair use
Judges typically consider four factors in determining whether a given use of copyrighted material is fair use.
What is the character of the use?
Educational, non-profit, and personal use is likely to be considered fair use; commercial use is not.
- Personal use includes uses such as making copies for one’s own files or using the copyrighted material in a paper written for a class (but not otherwise shared). For example, to use a copyrighted image in a research paper or multimedia project created for a class is personal use, but if the paper or project is posted on the web, it is legally published, and this use no longer falls under fair use.
- Educational use includes use by a teacher or student in a class or distance learning environment.
Uses that are "transformative" are most likely to be protected — that is, uses that do not merely reproduce the original work but transform it into something new or of new utility. Examples of transformative uses are quotation, criticism, commentary, and parody.
What is the nature of the work to be used?
If the material used is factual in nature, use of the work is more likely to be considered fair use. Additionally, if the work has been published, use of it is more likely to be considered fair use. Unpublished material (such as historical correspondence) is less likely to fall under fair use guidelines. Material that is made available to the public on the web is legally considered to be published.
How much of the work will you use?
You typically may reproduce only a small piece of a work — a common guideline is 10 percent. Another common guideline is that you may not reproduce a "substantial amount" of the work. This is less precise, but a "substantial amount" may be less than 10 percent in some cases. For example, a short clip of a scene from a movie may be far less than 10 percent of the movie, but still represent a substantial amount of the creative content of the movie.
How much of a work you may reproduce depends on the media in which the work was published (text, image, video, etc.). This article on LEARN NC provides guidelines for how much of a work may be republished for educational use (such as a student multimedia project); however, be warned that these limits may not apply to other kinds of use.
What effect would this use have on the market for the original or for permissions if the use were widespread?
The primary purpose of copyright law is to promote intellectual activity by ensuring that creators of works can profit from their sale. Ask yourself: is my use of this material preventing the ability of its creator to make money from its sale? If yes, your use of the material is likely not fair use. Hence you could play a piece of recorded music in your classroom but not distribute the music in an MP3 file to your students; the latter use interferes with the ability of the copyright holder to make money from the sale of the music, while the former does not.
This is often the most important of the four factors to consider, but remember that it is not the only factor — a creator retains rights to a work even if he or she does not intend to profit from it!
Fair use in education
Educational use and personal use (see #1 under Four Factors, above) cover most classroom uses of copyrighted work. However, the web and the desire to share or publish students’ work make it easy for teachers and students to cross the line from fair use into copyright violation. As a guideline, consider educational use to cover only what happens within the confines of your classroom (or distance learning environment).
What is not educational use. To republish or publicly perform a work does not fall under fair use. For example, a student may use a copyrighted image in a multimedia presentation to the class, but may not post that presentation to the web where anyone could see it. An English class may act out parts of a play as they study it, but may not give a public performance.
A chart of copyright and fair use guidelines for classrooms is available from Hall Davidson.
Fair use in distance learning
For the most part, fair use guidelines in distance learning environments are identical to those in face-to-face classrooms. Special rights granted to educators beyond fair use (see copyright) are subject to special restrictions in distance learning environments. The term "distance learning environment" also assumes a special restricted-access area for instructor and students, not a publicly available space on the web.
Fair use on the web
The web makes it very easy to share information with students, parents, and colleagues — and very easy to violate copyright law! For legal purposes, publishing something to the web is exactly like publishing it to print. Fair use guidelines are identical whether you are using a work on the web, in print, or in face-to-face public performance. If you would not distribute 8×10 glossy prints of a photograph, for example, don’t post a digital copy of the photo on your public classroom website!
A simple text link from one web page to another typically does not violate copyright law, because it provides only a direction on how to find the copyrighted work; it does not reproduce it in any way. A text hyperlink may be thought of as similar to a card in a library card catalog, which merely tells you where to find a book on the shelf but does not reproduce the text of the book.
There are, however, exceptions. The key to avoiding copyright violation is not to link to content in a way that implies ownership of that content.
Deep linking. In some cases, website owners may object to deep linking — the practice of linking to a page within a website that is not the site’s home page. They may object because deep linking bypasses advertising or identifying material that appears only on their home page. However, objections are rare. A good practice when deep linking is to state the name of the website to which you are linking, if practical with a link to the website’s home page. (For example, the Stanford Copyright and Fair Use Center provides this explanation of linking and fair use.) This makes the ownership of the linked material clear.
Framing. Displaying another website inside a frame, for example with your own banner over top, may be a violation of copyright because it can cause confusion as to who owns the content displayed in the frame. If you use frames for your website, link to all outside websites in the top frame or in a new window.
Inlining content. Inlining content is displaying content, such as an image, directly from one website onto another. If you display an image on your website by pulling the file directly from another website’s server, you are inlining the image. Technically, you are not reproducing the image (because the file still resides on its owner’s server), but you are implying ownership by displaying it within the context of your own website. Additionally, inlining images draws on the resources of the originating website’s server, which may cost the owner money. Never, ever do this! If you want to display an image from someone else’s website on your own, ask permission, then copy the image file to your own web space.
Netiquette. In the mid-1990s, it was considered good "netiquette" (i.e. "net etiquette") to ask permission before creating a hyperlink to someone else’s web page. Most legal documents providing advice on linking still claim this. But the practice of asking permission has been uncommon for several years, even for deep linking. Bloggers, for example, link to one another continually; the "blogosphere" would shut down if everyone stopped to ask permission. However, it is good practice to list the source of a deep link (see deep linking, above).
Examples and resources
- An article on Fair Use Guidelines for Educational Multimedia from LEARN NC.
- The full text of the Fair Use Guidelines for Educational Multimedia, provided by the University of Texas.
- The United States Copyright Office provides laws and guidelines for all aspects of copyright.
- The Stanford Copyright and Fair Use Center provides a thorough overview of copyright and fair use.
- Fair use guidelines from the University of Texas, including an explanation of the "Four Factor Fair Use Test."
- Examples of cases from higher education that were considered fair use, or not. From the University of California system.
- A layman’s discussion of fair use from Wikipedia.
- "Just link it?" from LEARN NC looks at copyright and hyperlinking.
- American University’s Center for Social Media offers a code of best practices in fair use for OpenCourseWare, which discusses fair use as it relates to course materials created by universities and shared freely via the internet.