Re-re-re-remix: Demystifying Fair Use in Academia

This post is meant to be used as a starting point for understanding copyright and fair use. It is not legal advice.

Let's Start at the Very Beginning

Even after 15 years of professional experience in writing and marketing, with a background in academic research, instruction, and an MLIS, I still find myself needing refreshers on copyright and fair use. I consult an array of credible sources and lib guides depending on what I'm working on to help me make good choices, and I always check myself before providing consultation to others. 

Copyright and fair use can feel burdensome, and many folks I know comment that they have to do some Googling each time it comes up. I consider this a good thing - our cognitive loads are heavy enough without carrying around a mental fair use handbook. In the spirit of using the tools available to us, today's post is a "meta-resource" for thinking about copyright and fair use in educational settings. I'd love to see your go-to guides as well - please share them in the comments if you have them!

What is copyright?

Copyright generally refers to the laws and intellectual property rules that determine who owns a work and how it can be copied or reused. Copyright has been part of code since the Constitution was signed, and the Copyright Act of 1976 established modern copyright laws in the United States, which continue to be governed in Copyright Law of the United States (Title 17). 

It is a good rule of thumb to assume copyright exists on any work - physical or digital, and published or unpublished. In the US, copyright exists as soon as a work is created and in tangible form. The second an idea becomes an image, document, performance, song, and so forth, it is subject to copyright protections without any action by the author or creator. You can get a more robust (but brief) overview in this document from Copyright.gov or from the US Copyright Office's video below.

Source: US Copyright Office on YouTube

The field of copyright law is both wide and deep, and incredibly important to academic librarians and educators alike. To keep it brief and to the point, there are two sections that matter most for us:

• Section 107 - The Fair Use Doctrine, and 
  
• Section 108 - Limitations on exclusive rights allowing reproduction in libraries and archives

Section 108 is relatively straightforward with clearly defined rules about reproduction. Section 107, regarding fair use, is a little less so - and affords librarians and educators more flexibility for using copyrighted works. Let's talk about it.

What is fair use?

Image Source: Author

Fair use is a right in the United States - it is the part of US Copyright law that allows the use of copyrighted works and materials in certain appropriate circumstances. Fair use is a bit of a grey area, but Title 17 provides guidance for determining whether use is fair. I call these factors "The Big 4".  

Fair use is particularly important to educators and librarians. While it doesn't allow us to, for example, scan and upload an entire textbook for our students to use instead of making a purchase, it does provide avenues to duplicating and sharing portions of a work, for remixing or reusing a copyrighted work in a new context, and for creating new knowledge and information.

Fair Use Gut Check: Applying the Big 4 in Academia

With a basic understanding of copyright and fair use, we can start thinking about how to evaluate our own uses of copyrighted material for fairness. Oregon State University suggests starting with two questions:

• Does the use “transform” the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or does it just repeat the work for the same intent and value as the original, in effect substituting for it? 

• Is the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? (source)

These questions get at the crux of fair use in academic settings. They are not exhaustive or the basis of a legal determination, but they give us a place to start - and there are quite a few resources in the wild you can apply, too. Starting with a gut check (or a cheat sheet, like the infographic below) can help you identify grey areas where you need support from a librarian or even a legal team.

Image Source: Author

It's not rocket science

And by that I don't mean it isn't difficult. Math and engineering require precision and have rules to follow. Rocket science uses both of those, and there are checks, balances, formulas, and proofs. Fair use is more like jazz. There is basic structure and rules, but the way it plays out is different based upon context. Fair use is not arithmetic and requires ongoing consideration, and academic libraries are here to support you. If you're ready to learn more or stuck on a fair use question, check out some of these resources from university libraries across the country to get started:

• Columbia University's Fair Use Checklist
  
• Oregon State University's Fair Use LibGuide
• University of Pittsburgh's Fair Use LibGuide
• Four Factor Breakdown from Columbia University
• My Wakelet Collection of Fair Use & Copyright Resources

Happy re-mixing!