Copyright and Fair Use in Education

Fair use is a part of the Copyright Act of 1976 that allows for anyone to use copyrighted works under certain conditions, and is important for educators to understand and utilize. The core of fair use doctrine is the “Four Factors”:

• Purpose
• Nature
• Amount
• Market Effect

If you think about copyright as a series of restrictions, fair use is a set of exceptions that protects your right to use copyrighted material in certain ways. We don’t give copyright owners unlimited control over their content, we preserve a whole variety of uses and things that people get to do with copyrighted content without permission. Fair use is a set of factors and considerations to help us figure this out. ~Anthony Falzone

Now, it’s not a bad idea to ask for permission, since of course your are in the clear by obtaining it, just remember that even if you are denied that permission by the copyright owner, not even that is a barrier to making a valid fair use case.

Current thought in educational copyright leans on these two questions:

• Is your purpose Transformative? Are you saying something new and different than the author of the original was trying to say? Are you putting it a new context? Will you repurpose and add value to the copyrighted material? How significant is the transformation? Does the use transform the original work or does it simply replace the original work?
• Is the amount used appropriate to satisfy your use?

Interesting thoughts on transformativeness

Brandon Butler:

Just to add a little to what's been said so far, I would think that the value of fair use in this context is hard to underestimate, and that (with the usual caveats about needing details) there is a strong likelihood that uses for online teaching would be fair, all else being equal. Why else is a teacher going to perform or display a work in the context of of an online course other than to comment, criticize, illustrate, etc.? Unless the class is bogus (not impossible given the lackluster reputation of for-profit institutions), there will likely be a good fair use story to tell.

Principle One of the Code of Best Practices in Fair Use for Academic and Research Libraries speaks directly to this issue.

On the issue of "transformativeness," I think it's important to remember that courts don't use it in the colloquial sense. Judge Leval himself, who famously coined the phrase, defined it in this way:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings-- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

While I understand the hesitation that some folks feel about the idea that educational uses are "transformative" in the colloquial or popular sense - teachers rarely "remix" or "collage" materials like Jeff Koons or Dangermouse or whomever - surely educational uses are very often going to be transformative in the way that Judge Leval describes, and that judges now apply it. Material employed by a teacher in the course of distance learning courses is surely "used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings." R. Anthony Reese has looked at the cases and verified that "transformative" use does not require the creation of a new work; rather the key is a new purpose or context for the use.

For more on this issue, you might be interested in Peter Jaszi's forthcoming short article on fair use and education in light of the courts' general turn to transformativeness as the dominant way of thinking about fair use.

CSI story - What’s in a Name? by Mike Byrnes

CSI logoIn the beginning, after deciding our anti-plagiarism video would be a crime scene/hospital story, we decided a good title for it would be CSI: Yavapai. In the spirit of best practice and to follow good faith behavior, we thought it best to seek permission to use the CSI title. So I called CBS Headquarters in New York. After being passed around a couple offices in NY, I was told the CSI franchise was produced by Jerry Bruckheimer and I should contact his office in LA. When I called Jerry Bruckheimer’s office, they said I needed to talk to somebody at CBS. Argh! I was given a contact at CBS Television. After being transferred to a couple more offices at CBS—and after two months from my initial call to CBS Headquarters—I finally contacted somebody who could give me an answer. Unfortunately, the answer was “No.”

I told CBS we would give them credit for allowing the use of the CSI name and it would be good P.R. for them to be associated with an anti-plagiarism video. CBS said they did not want to “. . . water down the CSI mark.”

In the end, we went with the title Diagnosis: Plagiarism. Hopefully, after seeing the finished product, CBS will be inclined to work with us in the future and not see our efforts as “watering down their mark.”

Streaming Media Quandary by Thatcher Bohrman

An instructor had been showing their face-to-face classes a certain video for nearly a decade. They owned the video on VHS tape, and now wanted to stream the entire 20-minute program to her online classes. The program was created by a company whose business is primarily corporate training media, and the cost of similar products from this company averages $500-1000 for the physical media (a DVD), and does not necessarily include the rights to stream it in any case.

SIMPLIFIED FAIR USE ANALYSIS Factor 1 (purpose): it's an educational use, but whether it is transformative - a strong argument for fair use - is unclear. While the video is highly creative, it is not a dramatic work, so factor 2 (nature) weighs in favor of fair use. Factor 3 (Amount) weighs against because the entire work would be streamed, instead of "reasonable and limited portions". The fact that the company markets media to education weighs against a fair use because it does impact the market (factor 4 - effect) in that one fewer copy would be sold, though whether it's a significant effect is debatable.

Although the instructor concluded for themselves that their use favored fair use, they also imagined that asking permission would result in a denial, which felt wrong. Despite the fear of being denied (and its possible repercussions), it has been established by the US Supreme Court in Campbell v. Acuff-Rose Music (1994) that “being denied permission to use a work does not weigh against a finding of fair use". Even if a rights-holder stipulates needing a license to use their work, it may still be a fair use under the proper circumstances.