By Lindsey Gumb, Instructional Technology Librarian
It’s a common misconception that when a resource (e.g. an article, image, video, audio clip, etc.) is used in an educational setting that copyright restrictions dissolve entirely because “it’s educational use.” I hate to be the bearer of bad news to all of you who may be guilty of casually letting this phrase roll off your tongue, but there is no such thing as educational use. Really, I’m not lying: it’s not a real thing. There is, however, Fair Use, which does in fact come into
play quite often in educational settings, granting educators and students alike leniency in many situations. Let’s take a closer look.
Fair Use, or Section 107 of the U.S. Copyright Act is a subjective portion of the law which allows us to take and use portions of copyrighted works without obtaining the permission of the copyright holder, if and only if we use them for purposes such as criticism, commentary, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. To determine whether or not a use is considered fair or not, one must look at four different factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
To give a relevant example in higher education, let’s look at a situation that surfaces often on many campuses, including Roger Williams:
Q: “I want to upload a PDF article I found in an RWU library database to Bridges for my students to read before our next class discussion. Is this fair use?”
A: Here’s my motto: when in doubt, link out. Instead of uploading the PDF to Bridges, simply copy and paste the permalink to the article for your students to access themselves. You might argue that since Bridges requires a student to login it should be fine (and the courts may now agree with you), however, you are reproducing and distributing copies of copyrighted material without the explicit permission of the copyright holder by uploading the document. By providing a link, the student is required to enter their library credentials to access the article, and if they choose, they can download it for their own personal study (and you hope they do), which is considered Fair Use.
The above example frustrates educators to no end; they feel that because the resource in question is used in an educational setting and for an educational purpose it should be okay to upload it without contacting the copyright holder (in this case, a publisher). However, if we go back to the four factors listed above, you’ll note that number three mentions something about how much of the work (in this case, the article) one uses without obtaining said permission. Reproducing and distributing a whole article does not favor fair use, but potentially a smaller portion would be okay. Keep in mind, however, that the courts believe “intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement” (ARL). If you’re unsure whether the use is fair or not, consult with legal counsel.
Because fair use is so subjective, in higher education we are often forced to choose between using the material we wish to use in the classroom and using subpar resources that don’t exactly fit our needs but have no copyright restrictions. After reading the above Q&A, one can start to realize how frustrating working with copyright can be.
To end this article on a positive note, there is a lot of dialogue happening
in the academic and scholarly communities lately as advocates press Congress for a revision of the law to reflect the drastic change in technology and resource sharing capabilities that we have access to today as creators and consumers. Most notably, Harvard University is hosting its 4th annual Fair Use Week from February 22 -26 both virtually and on the Cambridge campus. Be sure to check it out!