Copyright Basics

"Fair use is primarily a defense"- T. Fisher, 2014, Copyright X lectures

Fair use doesn't blanket cover every educational use- it is possible to face legal problems when fair use is assumed to apply & is used incorrectly. Fair use is very much a grey area in the law- and can only be applied if your use fits all four factors required. Fair use mainly applies to the in-person classroom, rather than for distance learning. Most distance learning uses fall under the TEACH Act, which specifically discusses using resources for the online environment. 

1. Purpose & Character of the Use

• Why are you using this? Critique, Parody, and transformative use all count as fair. 

2. Nature of the work used

• Is this a song, play, paper, book, or another type of work- it does matter, since each of these falls under different copyright laws
• Is this a non-fiction work being used for an educational reason? This isn't saying not to use fiction or that all uses of nonfiction are fair, just that factual based works are more likely to be defensible for educational use. 

3. Amount of the work used

• The standard of how many pages/chapters is an outdated recommendation from before the internet. The case that ended this idea was Harper & Row Publishers, Inc. v. Nation Enterprises,  where a news magazine published a few hundred words- the reason why Ford pardoned Nixon, from his book without his permission or his publisher's, effecting the sales because that was why many people would've read the book. What you take from a work is significant- you can't take the "heart of a work", which is the reason why people would read/purchase or utilize a work. 
• If you only take an extremely small bit of the work (which is not considered the "heart" of it), then you may be doing what's called, de minimis copying, or copying so small that it is too little to count for fair use/violation of copyright consideration (consider a sentence)

4. The effect of the use upon the market for the copyrighted work

• If it can replace the original work- say a copy of a textbook, publicly posted without permission- it isn't fair use simply because it's educational because then it affects sales of the original. 
• If your use is harmful or malicious to the work (with the exceptions of parody and critique) and is publicly accessible

A few things that may help when trying to justify fair use defense: 

- limited usage or access within a classroom space

- using only as much as you need- preferably a very slight amount

- Transformative use- if the use of the work is significantly transformed for a different purpose. For example- when one artist uses pieces of another's work, but makes it so the original work is part of the new work- and that is is not a replacement/significantly similar to the original. 

Want to have a quick double check if your classroom use qualifies as fair? Check out these evaluation tools: