Fair Use – New Discussions on Copyright and Learning Materials

(Pictured: “Open Source”, Randall Munroe – via his excellent webcomic xkcd, available under a Creative Commons Attribution-NonCommercial 2.5 license)


Fair use – defined as the limited use of copyrighted material for purposes of parody, journalism, commentary/criticism, or education – and intellectual property/copyright laws always cause confusion (what does ‘limited’ mean? what is intellectual property? is everything copyrighted? what about stuff on the Internet?). This is especially true  in the classroom, where we must not only know what it means ourselves, we must be able to articulate it to our students and have them understand what it means to their own academic/creative work.  Lawrence Lessig has been the most vocal  advocate of loosening copyright restrictions for appropriating the work of others for one’s own creative development. His book Remix is famous for calling for the “free culture” of knowledge sharing, creative use – the remixing/sampling – of art, media, literature, music, and more. Lessig also founded Creative Commons, a copyright and free use hub for artists of all media persuasions and creative Web surfers looking to share their own work or use other people’s work.

A recent court ruling has brought the issue of Fair Use back into the news, as Oxford University Press, Sage Publishing, and Cambridge University Press sued Georgia State University’s online reserve for copyright infringement. From Harvard University’s Derek Bok’s Center blog, we highlight some key summaries of findings from the case of Cambridge University Press vs. Becker, and what it means to educators:

“The short story is that, in the face of potentially far more prohibitive measures, CUP v Becker ruled that, in most cases, one chapter in a book of ten or more chapters (and 10% of a book with fewer than ten) is generally considered the limits of “fair use.” So, if you’re looking for a rough benchmark, there you go. But, of course, it’s not really THAT simple.”

1: The “character” of the use. The ruling states that educational purposes strongly supports Fair Use. So far so good.

2: “The nature of the work being used.” This is more problematic. The judge ruled that there is a greater scope for Fair Use if the work is factual, or non-fictional. “Creative” works have a more restricted Fair Use application. For a lot of humanities and social sciences, this also supports Fair Use. Tough luck, Literature, I suppose – and for a wider swath of educators who use “creative” texts in the classroom.

3: How much of the work is being copied. Here are the brass tacks: According to the ruling, for works with ten chapters or more, the use of one chapter is fair. Under ten chapters, 10% of the total pages (including bibliography, index, etc.) is fair. On one hand, this could be worse. But 10% of a monograph can really come fast. Compilations, that is, multi-authored works, are to be considered as one text.

4: How the use could affect the potential market or value of the copyrighted work. The ruling is weighed against Fair Use if it would result in a financial loss to the holders of the copyright. This is where things get tricky. After all, how is the average professor or TF supposed to know or quantify these criteria? However, Judge Evans qualified this factor, stating that it would significantly favor publishers, AS LONG AS a license in an appropriate format is both readily available and at an appropriate price. In other words, if the publisher does not have a reasonably priced (and accessible) licensed digital version, then the scales tip back to Fair Use. And as things stand now, most publishing houses don’t provide such an option.

(Bolded items mine)

I know that some faculty vaguely understand the restrictions of copyright, fair use, and intellectual property – they are usually the holders of either a copyrighted work or intellectual property. Students, however, are probably much less clear on what constitutes copyrighted material, how to get permission to use such material, and the pervasive idea that “if it’s on the Internet, doesn’t it belong to everyone?”. While the judgement in the above case certainly helps clear up some confusion for educators – we know more exactly what we can use and what we can’t, as well as providing academic publishers with an incentive to make licenses more affordable – for students this is less helpful when creating their own work, perhaps through appropriation, or remix, of other people’s work. The following may provide a useful guideline- modified as necessary for your course and the coursework you are assigning for your students (note the phrasing in the second-to-last paragraph is particular to a course on digital rhetoric and literacy). Below that I’ve posted a couple really useful Fair Use & Copyright informational resources.

(courtesy of Professor Caroline Dadas, Assistant Professor, English, Montclair State University)

Some thoughts on Copyright and Fair Use:

Copyright (an author’s exclusive right to his/her writing or discovery) is established by the U.S. Constitution. Prior to 1976 authors had to register a copyright of their work, but after 1976 all work is automatically copyrighted. This means that the following are all protected by copyright:

  • alphabetic text
  • designed alphabetic text (HTML files)
  • images (.JPG, .GIF)
  • audio (.WMA, .MP3)
  • video (.MPG)

To promote the exchange of ideas, there is the Fair Use Clause which allows for the copying of portions of a work provided that: the purpose is non-commercial, only a portion of the work is used, the work is credited to the original author, and the use of the work does not infringe upon the gain an author might have from their original work.  Fair Use applies in instances of “criticsm, comment, news reporting, teaching, scholarship, or research” (US Code 17, Section 107).

So, if you are using copyrighted texts, you should keep in mind the context: you are limiting your use of these images to a classroom, for the purposes of critique/comment. In this case, you are covered by Fair Use.

Even though all work is automatically copyrighted, it is possible to provide licenses of use that are less stringent than U.S. Copyright. Take a look at www.creativecommons.org for an example of licenses that are based on an ethic of sharing, copying, sampling, remixing.

Online Resources:

Stanford Copyright & Fair Use Center – http://fairuse.stanford.edu/

National Council of Teachers of English (NCTE) – http://www.ncte.org/positions/statements/fairusemedialiteracy

Works Cited:

“Lessig on Fair Use.” Independent Lens, Copyright Criminals, PBS. 10 Jan 2010. Web. 26 Sept 2012 <http://www.pbs.org/independentlens/copyright-criminals/fair-use.html&gt;

 “‘Fair Use’ – A Nightmare Averted?” The Bok Blog. 17 Sept 2012. Web. <http://blog.bokcenter.harvard.edu/2012/09/17/fair-use-a-nightmare-averted/&gt;

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