What is “fair use” and how might it impact your creation of content?
“Fair use” is a provision of copyright law that limits how much original material may be excerpted from any publication that has a copyright. This doctrine exists in order to prevent wholesale republication of published material created by others while allowing for limited reuse in certain appropriate circumstances.
The copyright principle of fair use is separate from the issue of plagiarism, which occurs when someone republishes an original work and fails to attribute the source while claiming it as one’s own work. Under fair use, an educator is free to use brief excerpts or summaries of copyrighted material so long as it is done as part of a lesson for students. The simple process of sharing a link to a public web site is not an issue for fair use, but quoting from or otherwise republishing any copyrighted content may be.
Fair use is also separate from the issue of attribution. Even if the educator acknowledges the source of the material, that does not protect him against being accused of misappropriating it.
In non-educational contexts, fair use remains open to some debate and has been the subject of lawsuits. For example, Google was sued by book publishers to prevent Google Books from publishing online the entire text of copyrighted books. As a result, only short excerpts, usually a small fraction of one page, may be displayed online to show where a search term has been located within a copyrighted book. In the music business, sampling, the process of using parts of existing music to create new compositions, has been successfully defended as “transformative” creativity, even though it includes pieces of other musicians’ creations.
For a thought-provoking commentary on the extent to which even some well-known works are derived from previous works, see “The Ecstasy of Influence” by Jonathan Lethem in Harper’s Magazine, February 2007. Lethem asserts that “substantially all ideas are secondhand, consciously or unconsciously drawn from a million outside sources.”
In creating content for educational use, an instructor is free to use direct quotations from others as long as it does not represent a large proportion of the original work. The U.S. Copyright Office has stated that courts have recognized as fair use “reproduction by a teacher or student of a small part of a work to illustrate a lesson.”
The key words in this description are “small part.” According to the U.S. Copyright Office, “There is no specific number of words, lines, or notes that may safely be taken without permission.” So, whenever there may be a doubt about the permissible amount of reuse, the educator, scholar, or researcher should obtain permission from the original publisher.
For more information about fair use, see this page on the U.S. Copyright Office web site: http://www.copyright.gov/fls/fl102.html
The Stanford University Libraries have a detailed explanation of fair use at: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/