Copyright and Fair Use for Libraries and Educational Purposes: Home

The Four Principles of Fair Use:

Although the use of works under copyright generally requires permission from the author or owner, typically granted through a license, there are fair use principles which outline instances in which a work may be used without having to pay a fee or acquire permission. Fair use is a freedom of expression that is derived from the U.S. Constitution. It creates boundaries for the creation of permissible derivative works or copying for certain instances and types of usage.  Title 17, Section 107 identifies the following four principles that guide fair use:

1. The purpose and character of the use:
   1. Nonprofit educational purposes are favored over commercial uses. Such educational purposes include criticism, comment, news reporting, teaching, scholarship, or research.
   2. Transformative uses are favored in fair use legal disputes. A work is considered transformed when it is used in unique ways. Examples include quotations in a paper, pieces of works incorporated into a multimedia presentation, or works included in a commentary or criticism of the original.
2. The nature of the copyrighted work:
   1. Unpublished works are not favored in fair use disputes.  The reasoning is that creators should have the right to determine the circumstances of “first publication.”
   2. Courts give greater protection to creative works - art, music, poetry, feature films, dance routines, etc. Fair use is defined more broadly for non-fiction works.
3. The amount and substantiality of the portion taken: 
   1. The more one uses an original work, the less one is protected by fair use. The “amount” used is measured against the whole of the original work.  This is not always an easy determination – a book chapter may be published elsewhere as an independent essay.  Therefore, the use of that book chapter may be fair use if measured against the book; however it may be infringement if the calculation is based on the published essay.
   2. If the portion taken from the work includes the “heart of the work,” it may be considered infringement.  It could be argued that a book’s thesis statement is the “heart of the work.”  Therefore, even though it is such a small portion of the book, the use of the thesis could be considered infringement.
      1. WARNING: Photographs and artworks generate controversies because the user generally needs the full image or “amount.”
4. The effect of the use upon the potential market:
   1. If it is possible to purchase or license a copyrighted work, fair use is less likely to apply.
   2. “Effect” is closely linked to “purpose.” If the purpose behind the use of a copyrighted work is commercial, and an adverse market effect may result, fair use does not apply.  For example, occasional photocopying of a part of a work may have no adverse market effects, but reproductions of entire works can diminish the sales of the copyrighted work. 

Work cited: Columbia University Libraries. “Fair Use.” Accessed February 19, 2021. https://copyright.columbia.edu/basics/fair-use.html.

Additional Considerations for Determining Fair Use in the Classroom:

There is no prescribed method to ensure copyright compliance or infringement.

Copyright law, governed by Title 17 of the US Code, is ever-changing and can only be determined on a case-by-case basis.  The usage of every single creation, be it book, textbook, article, film, sound recording, photograph, artwork, etc., must be individually evaluated. Keep in mind that:

• Copyright is automatically assigned at the moment of creation.  A patent or claim does not need to be filled.
• The author or creator does not need to be known in order for copyright law to apply.
• Copyright law varies from country to country. There is no international standard.

The four principles of fair use must be collectively weighed.  The application of one principle does not negate the other three to make the copying of a work fair or unfair. This is particularly vital in educational institutions where it is easy to feel that educational purposes tip the scale in favor of fair use. Example, if the motivation for placing a textbook on eReserve is to create a cost-savings for the student, this is a clearly defined case of adverse effect on the market.  The author and publisher are being denied profit from sales.

Time limits apply. Again, there is no stated timeline or mathematical equation to determine if what was once fair use becomes unfair. However, consideration to first time use versus repeated use must be factored. Faculty members may be inclined to teach from the same copied article or book, semester after semester. If the copied materials are used repeatedly long term, a court of law may determine it to be a case of lost revenue to the creator and therefore infringement. It is an established best practice among libraries that a copy is retained no longer than one semester.  

Passwords are encouraged. In order to build a stronger case for fair use, the use of passwords for electronic copies is highly encouraged.  This ensures that a faculty member and/or the library is not publicly distributing works with copyright protections. 

Public Domain:

The “public domain” is any material that is not protected by copyright law.  It is so called because these works are available for use by the public without having to obtain permission or pay a fee. These works are no longer attributed to an individual entity. Public Domain is a facet of copyright protection that is significantly complicated by the date in which a work is created and the legislation that existed at that time. In general, there are four ways in which a work exists in the public domain:

1. The copyright has expired:

As of January 1, 2021 all works created prior to 1925 are in the public domain. The expiration of copyright works occurs every year on December 31.  On December 31, 2019 works published in 1923 expired, on December 31, 2020 everything prior to 1924 was expired, and so on.

2. The copyright owner deliberately placed the work in the public domain:

These are called “dedicated” works and for whatever reason, the creator has determined that the work should be made available for the benefit of society. Dedicated works should be clearly identified by a statement that declares it in the public domain. Note that this is a rare occurrence.

3. The copyright owner failed to follow copyright or renewal registration:

Many works published before 1964 fell into public domain because the creators failed to follow the law that was in effect at the time. Contemporary law required owners to file a renewal with the Copyright Office in the 28^th year of publication which was, at that time, the duration of copyright protections. To verify copyright status for a pre-1964 work, research records available through the U.S. Copyright Office. https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

4. Copyright law does not protect the type of work:

Among the works copyright law does not protect are jokes, short phrases, and facts.  Please note, however that the manner in which these ideas are presented may be copyrighted. In the United States, a work that is produced by the federal government (not state or public governments) is in the public domain so long as it was created through the course of the creator’s, a public servant, official capacity.

Again, public domain and copyright law is a complicated business.  Please consult the U.S. Copyright Office (https://www.copyright.gov/) for additional information and to make determinations for your individual copying needs. The William C. Jason Library is not a legal authority and should not take the place of advice from a licensed attorney.

Orphan Works:

Copyrights are valid for the life of the creator/author plus 70 years.  After a creator’s demise copyrights are passed to a named beneficiary in a will or trust.  Orphan works are created when the creator does not name a beneficiary and does not have family members to serve as custodians of the copyrights.  In other words, the work is still under copyright protection, but no one exists to represent the creator’s interests. 

There are other scenarios that lead to the formation of orphan works. The creator of an orphan work may still be living but A) he does not know he has copyrights, B) is unknown to the potential user, or C) cannot be located by potential users to ascertain permission to use the work.