Copyright & Fair Use

When balancing the scales between an author's copyright and the public's fair use rights, four factors (i.e., weights) are employed. All four weights must be considered when judging on which side the scale will tip. It is unnecessary to "win" on all factors for a fair use claim to hold merit (Simpson & Wolfe 2021).

All [the factors] are to be explored, and the results weighed together, in light of the  purposes of copyright. - Justice David Souter

Factor 1 applies only to materials used in teaching or research. Portions of copyrighted works can be discussed, critiqued, or annotated as part of learning activities; however, using copyright materials for their original purpose would not be acceptable public. (Simpson & Wolfe 2021)

According to courts' interpretation, educators must transform the nature/usage of copyrighted materials from their original purpose. A work is transformative if, in the words of the Supreme Court, it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569)

Facts cannot receive copyright protection; however, the author’s selection, arrangement, and expression of these facts are protected. Conversely, creative works (films, novels, poems) are fully protected. As described in Factor 1, using portions of creative works require transforming the content’s intended use.

Thus far, we have discussed making “fair use” of  published works; however,  unpublished materials are almost entirely protected. Courts never support fair use claims on unpublished works as the creator does not (did not) wish for the work to be displayed before the public. (Simpson & Wolfe 2021)

Factor 3 speaks to the size and significance of the portion reproduced, and unfortunately, there are no sure-fire rules to follow. Only use what is needed to meet your instructional/research goal. The less you use, the better, so if you are using/reproducing most of a work, you are probably using too much. 

Lastly, courts pay special attention to the "essence of the work." Even if you are only using a tiny portion of a work, if that portion summarizes the work's central message, its use is not "fair." (Simpson & Wolfe 2021)

Copyright holders have the right to profit from the publication of their works. As with factor 1, it is crucial to consider the purpose of the creator's copyright. If a publisher expects to make money from an expensive textbook, providing free portions to students would be a direct infringement on the publisher's right, negatively affecting the market value of their product. As such, making a fair use case on materials intended for an education market is extremely risky.

The easiest way to use education-focused publisher materials is to require students to purchase a license and/or buy a textbook .

Lastly, a claim of fair use will be harmed if money changes hands (even if no profit is made).

Let’s face it. It’s easier to share digitized media (e.g., images, text, audio, video) than analog media (e.g., paintings, journals, records, filmstrips).

The 2003 Teach Act enacted specific guidelines that allow the fair use of digital media in classrooms (i.e., any classrooms with web support). However, these guidelines are primarily focused on protecting copyright holders from digital piracy in schools. 

The Teach Act in no way  supplants the four fair use guidelines. When using digital media, educators need to consider how that might justify its current use and protect these assets from abuse.  

1. All used media must have a direct connection to the current curriculum.
   1. Transform any media you use from its originally intended use and ensure that its use is directly related to your curriculum (factor 1).
   2. Never providing complete copies of digital works. Only provide the portion relevant to the activity in question (factor 3).
      

2. Only officially registered students can have access to view copyrighted materials
   Digital content must be hosted on a secure password-protected server, never on open websites. Access to these materials must end after the course is complete.

3. Where possible, copyrighted materials should be formatted/encrypted to hamper duplication.
   Examples: Stream video clips, rather than making videos available for download. Set files to open in the browser rather than allowing them to download automatically.

4. Educational Institutions are ultimate responsible for ensuring the security of copyrighted materials
   1. Administrators must regularly train faculty and staff in the institution's copyright policies. Additionally, they are responsible for ensuring that only correctly enrolled learners can access digital classrooms.
   2. IT staff are required to hamper the duplication of materials and limit learner access to materials after each class term. IT staff may store content between the class runs if steps are taken to secure the archive.
   3. Faculty & Course Developers must follow fair use guidelines as outlined above. Further, it is the instructor’s responsibility to understand the restrictions accompanying publisher-provided materials. Interfacing with your school's library can be very helpful in this regard.