Copyright and fair use questions come up very regularly for us in Library Services. The questions are usually some variation of “Can I use this?” from a faculty wanting to make online or printed copies of something for their students. Because we deal with copyright issues as part of our work with keeping and lending information materials in the library, and with providing access to online subscription content for our thousands of users, we librarians are often the de facto campus copyright and fair use experts. And we welcome that role — No, really, we do! However the questions are almost never easy or straightforward to answer. So if you ask us a copyright question you may first hear a disclaimer (“I am not a lawyer, and this is not legal advice”) then you will hear words like “probably” and phrases like “you should be okay”, or possibly “I wouldn’t recommend it, but how about ________”. So here are a few things that you may or may not realize about copyright and fair use that will help you understand these matters better, and hopefully be more at ease about using the fair use doctrine when it does apply.
Things to put you at ease:
Remember that fair use is a doctrine of the U.S. Copyright Law, and it provides a defense for use of copyrighted works that would otherwise be infringement. This means a few things:
- You only need to invoke the fair use doctrine on works that are under copyright. Works that are open licensed (such as Creative Commons licensing) may be freely copied as long as you follow the rules of the license (e.g. you might be required to credit the original author, or you might not be able to may any changes to the work). Likewise works in the Public Domain may be copied and edited without restriction. But Public Domain typically only includes works older than 1923, or works published by a U.S. government department or agency. (And don’t get me started with works published outside the U.S.)
- You only need to invoke fair use if you make a copy of a work. Copying means a paper copy or a digital copy, so downloading a digital copy of a work to your computer and posting it on Talon means you have made a copy. However, making a link to an existing online copy of a work (such as linking to an article or ebook within a library database using a permalink) does not constitute making a copy, so you don’t need to make the fair use determination in that case. Link away!
- Do invoke the fair use doctrine once you’ve made a determination that it applies to your situation. On the one hand, just because your use is educational does not mean all copying you do is fair use — educational purpose is only one of the four fair use factors. On the other hand, once you’ve made your best determination that your use falls under fair use, you should feel at ease about making your copies. Section 504 (c)3 of the copyright law states that employees are not subject to statutory damages if we make “good faith” decisions — this means having a process of evaluating fair use on a case by case basis. For this reason we recommend faculty download the fair use checklist, fill it out and save a copy each time you make a fair use determination for copying you do. The checklist is designed to help you make the decision on whether your use tends to favor fair use or not. Ask a librarian if you’d like a second opinion on your fair use.
- If fair use doesn’t seem to apply, maybe there’s another way to provide the material to students. Ask a librarian for help, we can often find ways for you to link to content we have already licensed for student use, or can help you find similar content from an open licensed source.
I hope this guide was helpful! If you haven’t already, bookmark the library’s copyright help guide for quick reference.