Copyright & Fair Use
SUPERHERO GOALS
- read about and watch videos on copyright & fair use for educators
- decide if a work might be used under the four fair use arguments
- determine if a work is in the public domain
Approximate time to complete: 30 minutes (25m read/watch; 5m activity)
A very brief summary
Copyright is a legal right that provides a mechanism for protecting original creative intellectual property. Copyright gives the originator exclusive right to reproduce, share publicly, and make derivatives of their own work.
Exclusive in this context means that if anyone wants to use the work similarly, they must first obtain permission from the copyright holder.
Novels, written music, paintings, plays, videos, multimedia creations, translated books, anthologies of written work, computer software, and code are examples of some types of things that can be copyrighted. In other words, any original creative expression of ideas is copyrightable.
Copyright cannot be attached to facts or ideas, and it is only the expression of the concept or fact that can be copyrighted. Work that government employees create, legislative documents and legal documents or works already in the public domain are also not copyrightable. Non-original work cannot be copyrighted.
In the U.S., copyright lasts for 70 years after the creator’s death. Copyright term varies from 20-100 years around the world – this can be important because whatever country you use the work within controls the term and other restrictions.
Why is copyright important?
There are two primary rationales for copyright law:
Utilitarian:
Under this rationale, copyright is designed to provide an incentive to creators. The aim is to encourage the creation and publication of new works for social benefits.
Author’s rights:
Under this rationale, copyright protection serves to recognize and protect the deep connection authors have with their creative works. This rationale is founded upon moral rights, which ensure attribution for authors and preserve the integrity of creative works. In most countries (the U.S. excepted), attribution is required for all works including those in the public domain.
Copyright is important for creators across the world. First, it provides a mechanism for incentivizing innovation, creativity, and original work production through economic means. If anyone could take your original work and profit from it, you may be less likely to want to create and share new original work.
It also helps to provide parameters for getting credit for your original work; otherwise, anyone could claim that they were the work’s creator, which is not fair. Attribution is a moral rights consideration that acknowledges and values the connection between a work and its creator. In some countries, this right is retained indefinitely even after the economic copyright protection is expired. Most countries view moral rights as integral to copyright protection.
Public Domain
After the copyright term ends, it automatically falls into the public domain unless the copyright term has been legally extended. In the U.S., copyright term expiration has varied over time, so you can use this handy slider tool to help you determine whether a work might be in the public domain.
Once a work is officially in the public domain, it can be used without worry in whatever way desired, even for profit. You can choose to dedicate your work during your lifetime to the public domain. The best way to do this is to assign a Creative Commons No Rights Reserved CC 0 license to clearly communicate to others that you are relinquishing your copyright to work.
A brief history of copyright
This is a short and entertaining history of copyright and why it’s important.
‘Copy (aka copyright) Tells the Story of His Life‘ by #FixCopyright, CC BY 3.0
Exemptions to copyright
“Copyright Myth-Reality Cards” by CopyrightUser.org CC-BY 3.0 – fun cards about copyright & fair use from a UK perspective.
Copyright law does not require permission from the copyright holder for every use. Some uses are permitted to help balance the needs of the public and the copyright holder. As educators, we can use the fair use argument for legally using copyrighted material without special permission to do so in our class.
Determining fair use is often reasonably easy when you break it down into the essential components and use common sense. There are four factors that must be considered to use work under fair use. These are arguments that you could use in a court of law to defend your position in using the work.
“Copyright & Fair Use in Education” by Jennifer Moss, CC BY 4.0.
Is it fair use?
To review, there are four factors that apply to the fair use argument for using work not in the public domain or under a license that is not open.
- The purpose and character of the work used
- The nature of the copyrighted work used
- Amount and substance of the portion used
- Effect on the potential market of the work used
The TEACH Act
Copyright law in the U.S. provides educators with a clarified set of rights in regards to fair use, specifically based on the rights to display and perform others’ works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium. This act expanded the scope of online educators’ rights and helped to somewhat clarify use cases for online teaching. The TEACH Act does not supercede fair use and comes with a list of requirements (see this handy checklist to see if your use falls under TEACH) that are best practice when you are using work for education under fair use.
Resources
- ‘TEACH Act‘ by University of Texas Libraries, CC BY
- UA Statement on Copyright
- “2.1 Copyright Basics” by Creative Commons, CC BY 4.0.
- “2.2 Global Aspects of Copyright” by Creative Commons, CC BY 4.0.
- “2.3 The Public Domain” by Creative Commons, CC BY 4.0.
- “2.4 Exceptions and Limitations to Copyright” by Creative Commons, CC BY 4.0.
Challenge Activity
Read through these scenarios and discussions. The fair use tenants are written in vague terms, would you answer differently to these scenarios?