Copyright, Creative Commons, and Public Domain

Copyright is a set of exclusive rights guaranteed to the creator. It includes the exclusive right to:

• Translate
• Adapt
• Perform, recite, communicate to the public, broadcast
• Reproduce, reproductions

World Intellectual Property Office. (2020). Berne Convention for the Protection of Literary and Artistic Works 1886. Retrieved from https://www.wipo.int/treaties/en/ip/berne/

Fair Use is a set of limitations to the complete and exclusive rights that a copyright owner holds for any creative work.

Where Creative Commons licensing is selected by the creator to allow specific uses of a work, the doctrine of Fair Use applies to any copyrighted work, and does not require any permissions from the creator.  

Fair Use does not necessarily allow for remixing, reuse, and/or revision as creative commons licenses do, and Fair Use must comply with the four factors listed below.  

Section 107 (of U.S.Copyright law) contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1. PURPOSE: The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. NATURE: The nature of the copyrighted work.
3. AMOUNT: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. EFFECT: The effect of the use upon the potential market for, or value of, the copyrighted work.

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There are no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.  (US Copyright Office).

Because we are working in an educational institution, we often use other's creative works in the classroom through the doctrine of Fair Use. The advantage of Creative Commons licenses is that this use is granted by the creator up front, there is no question about whether the use meets the Fair Use doctrine.  As faculty publish educational materials on the web, and share content outside the bounds of a classroom, CC licensed materials guarantee that this use does not violate the copyright of the creator.  With Fair Use, there is never a clear answer as to whether content can be used under fair use, since each case is decided individually based upon the four factors.    

To find out more about Fair Use:

• The Copyright Advisory Office at Columbia has a webpage that explains the four factors in therms of educational use. They also provide a check-sheet to help faculty evaluate fair use for a specific instance (this is a PDF document)
• Stanford University Copyright and Fair Use office also has a good set of pages covering Fair Use including pages on
  • the four factors doctrine
  • summaries of Fair Use cases
• The University of Minnesota Libraries covers copyright, fair use, and teaching with copyrighted materials
• Center for Media and Social Impact - Fair Use Best Practices

This work, "What is Fair Use?" is a derivative of "What is Fair Use?" by Lebanon Valley College is licensed under Creative Commons Attribution-Share Alike 4.0 International License. "What is Fair Use?" is licensed under CC BY SA by Kendall Larson.

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