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Fair Use and OER

What is Fair Use?

Fair use is a legal doctrine which says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. 

Circumstances permitting the application of fair use generally include review, news reporting, teaching, or scholarly research. The fair use doctrine in United States copyright law enables incorporation of a wide range of copyrighted inserts into OER for common teaching and learning purposes.

Fair use may not be what you expect. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?

Attribution: [University of Virginia Library] (2017, Apr. 28) Fair Use in Seven Words [Video File]. Retrieved from https://youtu.be/6DEu-cVYcI0

Four Factors

To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision, Section 107

of the U.S. Copyright Act and they have been examined and developed in judicial decisions. The following summaries identify and explain the significance of the factors as they relate to many university needs. 

To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision, Section 107Item opens in new tab/window. of the U.S. Copyright Act and they have been examined and developed in judicial decisions. The following summaries identify and explain the significance of the factors as they relate to many university needs. 

The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. Although educational use in and of itself will not assure that the use is a fair use, by the same token not every commercial use will fail as a fair use. But be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use. Transformative uses, uses that result in the creation of a new work, with a new purpose and different character are favored as fair uses over uses that merely reproduce an original work. The more transformative a particular use is the less significant the other factors will be as they weigh against fair use.

Factual works, published works and scientific articles that are factual in nature are more likely to be considered available for fair use than are creative, imaginative, artistic, or unpublished works. Additionally certain “consumable” works, e.g. workbooks and standardized tests are not likely to be considered available for fair use.

The statute gives no bright line indication concerning how much of a work may be used under fair use but the implication is that use of the whole work is less likely to be considered a fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The “amount” of a work is also measured in qualitative terms.

Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.” On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.

Generally the consideration for this factor is whether or not there is some economic harm to the owner of the copyright as a result of your use. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use.

Positioned as the fourth factor it is a bit easier to consider market effects. If the first three factors weigh in favor of fair use then market harm should carry less weight even when considering the permissions market, since the market is for permissions that are required. Conversely, if the first three factors are tipping the balance in favor of permission then market harm will carry more weight in the balancing of the factors.

To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price.

“Effect” is also closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.

Fair Use Checklist

This checklist is provided as a tool to assist you when undertaking a fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.

For more information about how to apply the factors in fair use, see the Fair Use Checklist.

Using Student Work

Students own the copyrights to their academic work(s). Faculty cannot use student work, even if you remove the student’s name, without first obtaining their permission. You may use the simple release form below to request the use of their work, with or without the use of their name (they may not want their name used), if using that work in a course or on an OER. Make sure students know they have the right to refuse. Follow copyright Fair Use guidelines and proper citation procedures if you are using student work in your OER or research.

Student Work Release Form (pdf)

Fair Use Comic

Tales from the Public Domain: BOUND BY LAW? Item opens in new tab/window.

Bound by Law translates law into plain English and abstract ideas into ‘visual metaphors.’ So the comic’s heroine, Akiko, brandishes a laser gun as she fends off a cyclopean ‘Rights Monster’ – all the while learning copyright law basics, including the line between fair use and copyright infringement.” -Brandt Goldstein, The Wall Street Journal online

Cover of comic, superhero with video camera and creative commons shield. Clicking takes you to comic site.
Copyright 2006 Keith Aoki, Jomes Boyle, Jennifer Jenkins
(CC BY-NC-SA 2.5) Creative Commons Attribution, Non-commercial. Share alike license.

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The “Fair Use and OER” page in the Brooklyn College “Quick Guide to OER for Teaching & Learning” is by OER Developer Amy Wolfe and based on the “Copyright Quick GuideItem opens in new tab/window. by Dr. Kenneth D. Crews (formerly of Columbia University), the “Fair Use ChecklistItem opens in new tab/window. by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville), the “OER & Fair UseItem opens in new tab/window. by Tufts University Libraries and “Code of Best Practices in Fair Use for OERItem opens in new tab/window., available at auw.cl/oer is licensed under CC BY 4.0” Attribution-NonCommercial 4.0 International license.