Copyright Basics for Educators and Students

This guide provides basic information about copyright, fair use, and educational exemptions in copyright law. Use the tabs to find additional copyright resources.

What can these factors do?

Fair use is a law that gives you flexibility to use copyrighted works without permission in ways that lead to progress in science and culture. It is a legal exemption to the exclusive rights of copyright holders.

Follow these four factors when you are attempting to use works of others:

Factor 1: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Factor 2: The nature of the copyrighted work being used

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Factor 4: The effect of the use upon the potential market for or value of the copyrighted work

Factor 1

"The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes."

Educational uses are usually favored in this case. (Remember - it's all about balance!)

Examples include:

  • photocopying for classroom handouts
  • works behind a password wall like D2L
  • limiting access to students / folks in your class
  • limiting printing / number of views.

Transformative Use

A transformative use of the work used may occur when the work is altered or transformed into a new work such as a parody of a song or art image.

Think to yourself: Does my use of the work add something new, does it change the purpose, or alter the original work with a new expression, meaning, or message?

Think: how much different from the original, is my work?

Examples: quotations in a paper or conglomeration of various works in a multi-media project

Multiple Copies

You're in luck! Teaching is favored under Fair Use - it is actually explicitly stated in the law! The statute also specifically permits "multiple copies for classroom use!"

BUT!

Be careful! Be sure to check the Four Factors listed here to see if you are within fair use. Remember - it's all about BALANCE!

Factor 3

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

Amount is measured both quantitatively and qualitatively - no "exact" measure of allowed quality exists in the law.

Quick tip!

Use common sense - if you have a 10 chapter book, using one or two chapters from the book can fall within the amount, as long as the chapters do not contain any spoilers for the book.

Steer away from spoiler chapters!

Shorter excerpts are more likely than longer pieces to be within fair use.

Factor 2

"The nature of the copyrighted work being used."

 

The basic concept of "nature" is that some types of works are more appropriate for fair use than others.

When looking at the second factor, you must examine the qualities and attributes of the copyrighted work, to see if the work is of a type that warrants greater protection and therefor has less defense of a fair use argument. OR is the kind of work that fair use encourages growth and dissemination of knowledge.

Unpublished Works

Courts are less lenient to consider fair use, when a work is unpublished. The courts believe that the author should have choice of first publication, as well as if, how, where, and when the work is published.

One exception holds that if an author tried to publish a work, but was unsuccessful, fair use might be claimed.

BUT! Remember to balance this against the other factors!!

Fiction and Nonfiction

Fair use applies most generously to published works of non-fiction. Why?

Remember! The main purpose of fair use is for the growth of knowledge.

Works of fiction, like other creative works, are harder to claim fair use. If creative works are used, very limited segments of the work can be used. Remember! If you do use a creative work, balance it against the other factors!

 

A possible claim for fair use can be a parody of a creative work - it is altered, but uses the same creative work.

Example:
Google Books Case - the nature of the digitized, limited version of the book fell into fair use. Why?

  1. In Google Books, you cannot print sets of pages, so the nature was sufficiently changed.
  2. You cannot access the entire work in Google Books
  3. The work is transformed in digital format

Factor 4

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

 

This fourth factor examines the market effects and questions whether its use replaces what should have been a sale of the work or a license to use it.

Easy example: Napster's goal to allow access to free downloads - this had dire impacts on the copyrighted market.

Identify the Market

Here, you must work to identify the market that the work you are using, belongs to.

Crews (2020) recommends that you ask these questions:

  • How is the work actually marketed?
  • What are the realistic potential markets?
  • Is the work realistically marketed for your needs?
  • Are your market effects significant?
  • Would you be making money on the work?

Crews, K. (2020) Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (4th edition). ALA Editions, Chicago. p. 110.

Karl E. Mundt Library, Dakota State University, Madison, South Dakota 57042
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