Fair Use





Introduction
The totality of collected data, information, knowledge, and wisdom is growing very rapidly. The Web and other computerized information storage and retrieval systems have opened up much of this collection of students and teachers. Such materials are an important resource for teaching, learning, and problem solving.

The Internet has raised new issues of intellectual property rights. Many teachers and students are confused about their rights to make teaching and learning uses of these materials. The meaning of "fair use" differs considerably from person to person. Quoting from a 2007 eSchool News article:


 * Teachers face conflicting information about their rights, and their students' rights, to use copyrighted works, the report says. They also face complex and often overly constrictive copyright policies in their own institutions. As a result, they use less effective teaching techniques, teach and transmit false copyright information, and do not take advantage of new digital platforms for their instruction.


 * "This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment," the report says. "Educational exemptions sit within a far broader landscape of 'fair use.' However, educators today have no shared understanding of what constitutes fair-use practices."


 * In layman's terms, fair use is "a statutory exemption to the rights of copyright owners," says Kenneth Crews, a legal scholar at the Indiana University School of Law in Indianapolis. There are four key factors that help decide whether use of copyrighted material constitutes fair use, he said: (1) the purpose of your use, (2) the nature of the work, (3) the amount you're using, and (4) the effect of your use on the market.

The Problem
Fair use is a complex legal issue. Moreover, we live in a litigious time. Thus, many people are fearful of the possibility of being sued, and many people sue for a wide variety of reasons.

Fair use is, of course, related to intellectual property law. Quoting from the Wikipedia:


 * In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media, and inventions. The holders of these legal entitlements may exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect. The term implies that intellectual works are analogous to physical property and is consequently a matter of some controversy.


 * Intellectual property laws and enforcement vary widely from jurisdiction to jurisdiction. There are inter-governmental efforts to harmonise them through international treaties such as the 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), while other treaties may facilitate registration in more than one jurisdiction at a time. Disagreements over medical and software patents and the severity of copyright enforcement have so far prevented consensus on a cohesive international system.

The Stanford University Libraries provides an extensive website on Copyright and Fair Use. Quoting from the chapter on Fair Use:


 * Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.


 * Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages.


 * The only guidance for fair use is provided by a set of factors outlined in copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map can be tricky to navigate.


 * This chapter explains the various rules behind fair use principles. To help you get a feel for which uses courts consider to be fair uses and which ones they don’t, several examples of fair use lawsuits are provided at the end of this chapter.

Quoting from Teaching Copyright, a project of the Electronic Frontier Foundation:

How does the court know if a use is fair?
 * Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn't depend on whether you give credit to the source from which you copied.  Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act.  Those factors are:


 * The purpose and character of the use of copyrighted work.


 * Transformative quality - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?


 * Commercial or noncommercial - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.


 * The nature of the copyrighted work.


 * A particular use is more likely to be considered fair when the copied work is factual rather than creative.


 * The amount and substantiality of the portion used in relation to the copyrighted work as a whole.


 * How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," may weigh against fair use.  But "how much is too much" depends on the purpose of the second use.  Parodies, for example, may need to make extensive use of an original work to get the point across.


 * The effect of the use upon the potential market for or value of the copyrighted work.


 * This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use.


 * Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.


 * The effect of the use upon the potential market for or value of the copyrighted work.


 * This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.


 * These factors are guidelines, and they are not exclusive. As a general matter, courts are often interested in whether or not the individual making use of a work has acted in good faith.

Simple Answers
There are many documents that list relatively simple guidelines about fair use of copyright materials. There typically come with a warning that these guidelines are not guaranteed to protect a user from being sued. However, such guidelines are quite useful and help to reduce the stress on teachers and students who want to make educational use of copyright materials.

Here is an example quoted from a University of Maryland University College document:


 * The copyright protections that we normally associate with print also govern the use of audio, video, images, and text on the Internet and the World Wide Web (WWW). The intuitive interface of the WWW makes it easy for the computer user to copy and use images, text, video and other graphics that are likely to be protected by copyright. A document may be copyrighted even if it does not explicitly state that it is copyrighted. As a result, it is a good idea to assume materials such as documents, images, or video clips are copyrighted. Educators can avoid copyright violations and legally use copyrighted materials if they understand and comply with the fair use guidelines. If you believe, after you review this document, that your proposed use does not comply with fair use guidelines, you always have the option to ask for permission from the copyright holder.




 * Student Guidelines


 * Students may incorporate portions of copyrighted materials when producing a project for a specific course.
 * Students may perform and display their own projects and use them in their portfolio or use the project for job interviews or as supporting materials for application to graduate school.


 * Faculty Guidelines


 * Faculty may include portions of copyrighted works when producing their own multimedia project for their teaching in support of curriculum-based instructional activities at educational institutions.
 * Faculty may use their project for:
 * assignments for student self-study
 * for remote instruction provided the network is secure and is designed to prevent unlawful copying
 * for conferences, presentations, or workshops
 * for their professional portfolio


 * Time Restrictions


 * The fair use of copyrighted material in multimedia projects lasts for two years only. After two years, obtain permission before using the project again.

In all cases, there are restrictions on how much of a copyrighted piece of intellectual property may be copied under fair use laws. The article provides guidelines on this aspect of making use of copyrighted materials.

The Center for Social Media, American University has published a detailed analysis and set of guidelines on fair use. Quoting from the document:


 * This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question—as it does for certain narrowly defined classroom activities.


 * This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.

Lists of Free Online Resources 
Moursund, D. (2016). Fair use. IAE-pedia. Retrieved 7/17/2016 from http://iae-pedia.org/Fair_Use.

Moursund, D. (2016). Free educational videos. IAE-pedia. Retrieved 8/17/2016 2016 from http://iae-pedia.org/Free_Educational_Videos.

Moursund, D. (2016). Free IAE math education materials. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_IAE_Math_Education_Materials.

Moursund, D. (2016). Free math education videos. IAE-pedia. Retrieved 7/17/2016 from http://iae-pedia.org/Free_Math_Education_Videos.

Moursund, D. (2016). Free math software. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Math_Software.

Moursund, D. (2016). Free open content libraries. IAE-pedia. Retrieved 6/27/2016 from http://iae-pedia.org/Free_Open_Content_Libraries.

Moursund, D. (2016). Free open source and open content educational materials. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Open_Source_and_Open_Content_Educational_Materials.

Moursund, D. (2016). Free open source online databases. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Open_Source_Online_Databases.

Moursund, D. (2016). Free open source software packages. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Open_Source_Software_Packages.

Moursund, D. (2016). Free science education software. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Science_Education_Software.

Moursund, D. (2016). Free science education videos. IAE-pedia. Retrieved 8/17/2016 from http://iae-pedia.org/Free_Science_Education_Videos.

Popular Free Online IAE Books 

 * Moursund, D. (February, 2016). Math Methods for Preservice Teachers. Eugene, OR: Information Age Education. PDF file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/283-math-methods-for-preservice-elementary-teacher-1/file.html. Microsoft Word file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/282-math-methods-for-preservice-elementary-teacher/file.html. HTML file: http://iae-pedia.org/Math_Methods_for_Preservice_Elementary_Teachers.


 * Moursund, D. (August, 2015). Brain Science for Educators and Parents. PDF file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/271-brain-science-for-educators-and-parents-1/file.html. Microsoft Word file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/270-brain-science-for-educators-and-parents/file.html. HTML file: http://iae-pedia.org/Brain_Science.


 * Moursund, D. (2/28/2015). Technology and Problem Solving in PreK-12 Education for Adult Life, Careers, and Further Education. PDF file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/267-technology-and-problem-solving-in-prek-12-education-1.html. Microsoft Word file: http://i-a-e.org/downloads/free-ebooks-by-dave-moursund/266-technology-and-problem-solving-in-prek-12-education.html. HTML file: http://iae-pedia.org/Technology_and_Problem_Solving.


 * Sylwester, R., and Moursund, D., eds. (2012). Creating an Appropriate 21st Century Education. Eugene, OR: Information Age Education. PDF file: http://i-a-e.org/downloads/doc_download/243-creating-an-appropriate-21st-century-education.html. Microsoft Word file: http://i-a-e.org/downloads/doc_download/242-creating-an-appropriate-21st-century-education.html.


 * Moursund, D., and Albrecht, R. (2011). Using Math Games and Word Problems to Increase Math Maturity. Eugene, OR: Information Age Education. PDF file: http://i-a-e.org/downloads/doc_download/211-using-math-games-and-word-problems-to-increase-the-math-maturity-of-k-8-students.html. Microsoft Word file: http://i-a-e.org/downloads/doc_download/210-using-math-games-and-word-problems-to-increase-the-math-maturity-of-k-8-students.html.

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Author
The original version of this page was created by David Moursund and edited by Ann Lathrop.