The University of Mississippi

Z-Degree Mississippi

Module 2: Copyright and Fair Use

Why it Matters

This module is designed as a primer for college writing and speech teachers on the essentials of copyright law and fair use. You will learn how to leverage public domain content in your courses for positive student learning outcomes, as well as how to apply the fair use tests to copyrighted content you’re probably already using. Lastly, you’ll learn how to incorporate teaching about copyright into your courses.

Learning Outcomes

In this module, you will:

  • Identify the purpose of copyright
  • Differentiate what is copyrightable and what is not
  • Define different types of intellectual property
  • Apply principles of fair use

When you were in grad school, did you take a course in copyright law? If your degree is in English, Rhetoric and Composition, or Communication, you probably didn’t. Even in technical writing and communication coursework, relatively little attention is given to the intricacies of copyright and intellectual property. This is compounded by the fact that concepts of intellectual property are typically framed in terms of academic honesty in pedagogy courses. Most teachers in our field only have a general understanding of copyright. The term “fair use” often comes up when teachers talk about course materials, but it is often misunderstood or incorrectly applied.

Many teachers probably think that copyright law has little impact on their day-to-day work in the classroom. However, the affordances of the internet have allowed for endless new possibilities for bringing a variety of content and media into the classroom. With those possibilities have come new challenges. Have you heard about the Georgia State University copyright lawsuit?. This yet-unresolved case has important implications for everyone in higher education, even English Composition and Public Speaking teachers.

This module is designed to give teachers the essential knowledge and tools to be proactive in their relationship with copyrighted works. Unless (or until) there are significant changes to copyright law, it’s essential that teachers know how to protect their institutions, students, and careers from unnecessary legal headaches.

Arguably, the world’s most important early copyright law was enacted in 1710 in England: the Statute of Anne, “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.” This law gave book publishers 14 years of legal protection from the copying of their books by others.

Since then, the scope of the exclusive rights granted under copyright has expanded. Today, copyright law extends far beyond books, to cover nearly anything with even a fragment of creativity or originality created by humans.

Additionally, the duration of the exclusive rights has also expanded. Today, in many parts of the world, the term of copyright granted an individual creator is the life of the creator plus an additional 50 years.

And finally, since the Statue of Anne, copyright treaties have been signed by many countries. The result is that copyright laws have been harmonized to some degree around the world.

Copyright applies to works of original authorship, which means works that are unique and not a copy of someone else’s work, and most of the time requires fixation in a tangible medium (written down, recorded, saved to your computer, etc.).

Copyright law establishes the basic terms of use that apply automatically to these original works. These terms give the creator or owner of copyright certain exclusive rights while also recognizing that users have certain rights to use these works without the need for a license or permission.

There are some important fundamentals you need to be aware of regarding what is copyrightable, as well as who controls the rights and can grant permission to reuse a copyrighted work.

Copyright grants a set of exclusive rights to creators, which means that no one else can copy, distribute, perform, adapt or otherwise use the work in violation of those exclusive rights. This gives creators the means to control the use of their works by others, thereby incentivizing them to create new works in the first place. The person who controls the rights, however, may not always be the author. It is important to understand who controls the exclusive rights granted by copyright in order to understand who has authority to grant permissions to others to reuse the work (e.g., adding a CC license to the work).

Teachers, university faculty, and learners may or may not own and control copyright in the works they create in those capacities – that determination will depend on laws (such as work-for-hire in some instances), and the terms of the employment or contractor agreement, university or school policies, and terms of enrollment at the particular institution, even though you are the author and may have moral rights.

If you have co-created an original work that is subject to copyright, you may be a joint owner, not an exclusive owner, of the rights granted by copyright law. Joint ownership generally allows all owners to exercise the exclusive rights granted by law, but requires the owners to be accountable to one another for certain uses they make of their joint work.

Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. That may sound simple, but unfortunately it is not. The difference between an idea and the expression of that idea can be tricky, but it’s also extremely important to understand. While copyright law gives creators control over the expression of an idea, it does not allow the copyright holder to own or exclusively control the idea itself.

Check your Understanding

2. Leveraging the Public Domain

Copyright law varies from country to country, but in the US, public domain is a technical term referring to works that are not subject to copyright protection.

In general, there are three groups of works that are in the public domain:

  • Old works for which the copyright has expired;
  • Exempt works that may not be copyrighted or that were created under certain conditions;
  • Any works that have been released to the public domain by their authors.

Old Works

Under the current US copyright law, any copyrighted work will automatically pass into the public domain 70 years after the death of the author. In general terms, this means that virtually all classics or materials older than 120 years or so are in the public domain. To determine if a specific work is in the public domain, however, you should find out when the author died and add 70 years in order to determine the date at which copyright expires. This time frame has gradually been lengthened in US history, so some works may still be in the public domain that were created less than 70 years ago.

Exempt Works

Copyright can only be applied to specific types of works (e.g., books, movies, images) and cannot be applied to general knowledge. For this reason, you do not need to cite anyone when you state a fact (e.g., “Jupiter is a planet”).

Works may also be exempt from copyright if they are created under certain conditions of employment. The most common example of this is when US federal employees create works as part of their jobs (e.g., active duty service men and women in the armed forces). Works that these individuals create (e.g., photos taken) may be placed in the public domain by virtue of their employment.

Released Works

Any author of a work may willingly choose to release that work into the public domain by simply labelling the work (e.g., “this work is in the public domain”). By doing so, the author gives anyone (e.g., individuals, corporations) the right to use their work for any purpose, without limitation or attribution.

2.1: Advantages of Teaching with Public Domain Works

Works in the public domain have no barriers to use. You can incorporate these works in your courses in any way you want (even without attribution, though you should always cite your sources). Why is this important? Well, even when incorporating Creative Commons-licensed OER, you still have to pay attention to the terms of the license. Many teachers have come across works with a CC-BY-ND license, for example, that they want to revise, but learn too late that the license prohibits adaptation. Public domain works come with no added complications.

Hands-on Practice: Using the Internet Archive

Imagine you are a Public Speaking teacher. You want to use a video of an effective speech to build an interactive video like you’ve seen elsewhere in this course.

Go to the Internet Archive and find a good video of a speech to use. Then, write a 100-word description of how you would creative an interactive video to use in your Public Speaking class. Be sure to include a link to the original video!

It’s important to remember that a work that is in the public domain for purposes of copyright law may still be subject to other intellectual property restrictions. For example, a public domain story may have a trademarked brand on the cover associated with the publisher of the book. Trademark protection is independent of copyright protection, and may still exist even though the work is in the public domain as a matter of copyright. Also, once a creator uses a public domain work to turn it into a new work, the creator will have copyright on the portions of their new work that are original to them. As an example, the creator of a film adaptation based on a public domain novel will have copyright protection over the film but not the underlying public domain novel.

There are a variety of great tools available for locating works in the public domain. Bookmark these repositories and be sure to check them out before you decide to try to incorporate a copyrighted work into your class:

3. Fair Use

Fair use is an exception or limitation to copyright law that allows you to use some copyrighted materials in particular circumstances without the copyright holder’s permission. Specifically, if used for nonprofit educational purposes, some copyrighted materials may be used for teaching, but your use 1) should directly relate to your educational goals, 2) should only utilize a relatively small portion of the work, and 3) should not negatively impact the copyright holder’s ability to profit from the work.

Fair use means that copyright-restricted works can be used for educational purposes without permission under certain conditions. The four guiding principles that determine if use is fair are:

  • Nature of the Use
  • Type of Work
  • Amount Used
  • Commercial Impact

The first principle covers what you are doing with the content and whether your use aligns with the author’s intended use. Fair use only applies to uses of works that are transformative in nature. This means that your intended use must be different from the author’s intended use. Consider a novel. You can quote lines from a novel in a paper you write without permission from the novel’s author, because you are writing the paper to analyze literary elements of the novel, not to tell a story. If, however, you took those same lines and placed them in your own novel, then that would not be an example of fair use, because your intended use would be the same as the original author’s intended use.

The second principle gives greater flexibility in using informational or factual works than to artistic or creative works. Thus, copying a few pages from an encyclopedia is viewed as more conducive to fair use than doing the same with a detective novel, because the information’s benefit to society is readily apparent.

The third principle ensures that you only use as much of the copyrighted material as is necessary to achieve your goal. Thus, quoting a line from a novel would be considered fair use, but copying multiple chapters of the novel for this purpose would not. This is both a quantitative and qualitative consideration, in that you should not use more than is needed but fair use also should avoid using the “heart” of a work.

And the fourth principle considers whether copyrighted material negatively impacts the author’s ability to profit from it. If you copy an article to share with your class, this would prevent the copyright holder from selling access to the article, which would be a violation. However, if you were to copy only a paragraph of an article for this purpose, it is less feasible that the copyright holder would potentially lose money on this use. So, this use would be more defensible as fair use.

To determine if a desired use of copyright-restricted material would fall under fair use, ask yourself four questions:

  1. Use: Is the use transformative? (Yes = Fair Use)
  2. Type: Is the work informational/factual in nature? (Yes = Fair Use)
  3. Amount: Is the use minimal? (Yes = Fair Use)
  4. Impact: Does the use negatively impact the copyright holder’s ability to profit from the work? (No = Fair Use)

Practice: Fair Use Evaluation

Fair use is a judgement call, but the call is made based on the answers to these four questions. Thus, if your answer to all four questions aligns with fair use, then your use would likely be judged as fair. If the answer to one question does not align with fair use, then your use might still be fair, but it increases the potential for it to be judged otherwise. And so forth. In many court cases, uses that met three criteria have been deemed as fair, and in others, uses that only met one or two criteria have been deemed as fair, but there is never any guarantee. In short, only a judge can determine if use is fair, but a judge would use these four guidelines in making the determination.

To help safeguard their institutions and employees, many schools will adopt rules for interpreting fair use. For instance, some institutions will allow copyrighted materials to be used up to a certain percent of the work (e.g., a section of a book can be copied as long as it constitutes 10% or less of the entire book). These rules are not perfect reflections of the law but are rather interpretations intended to protect.

Many teachers assign multimodal remix projects or other assignments that encourage students to work with several different media sources. Given how easy it is for students to find content on the internet, it may seem daunting to ensure that students adhere to copyright. While it may be tempting to reassure students that their work falls under “fair use” regardless of what it is, doing so does not help them in the long run.

The best way to help students get in the habit of paying attention to copyright is to provide the resources they need to locate public domain and openly-licensed works to use as alternatives. For example, show a student who wants to use a popular song as background music for a podcasting project about CCMixter or show them how to filter YouTube searches by license.

Most of the time, students only want to use copyrighted material because it’s easy to find. If there is something that a student has a specific, articulated reason for using, then you can have the fair use conversation.

Of course, you can only help students change their copyright mindfulness happiness if you change yours 🙂

It’s easy to conflate plagiarism with copyright infringement. In an academic environment, they certainly have a lot in common, but you should try to differentiate them for students. One way to think about it is this: copyright is a legal issue, while plagiarism is an ethics issue.

That’s a bit of an oversimplification, but plagiarism does not equal copyright violation (or vice versa).

Think about the following scenarios and decide whether they constitute plagiarism or copyright infringement.

Module Quiz

Licenses and Attributions

CC licensed content, Original

CC licensed content, Specific attribution

Public Domain contnet, Specific attribution