February 22-26 is Fair Use Week, an annual event designed to highlight and promote further understanding of this important doctrine. In brief, fair use is a legal means of balancing the exclusive rights granted to authors and creators (as outlined in U.S. Copyright Law) with the ability of the public to use and benefit from copyrighted works without acquiring prior permission from the copyright holder. The judicious application of fair use enables you to publish an article including excerpted texts from other scholars and provide selected readings to your students via Canvas. In other words, fair use is invaluable to all of our work in higher education!
Determining whether your desired use is a fair use requires an evaluation of the four fair use factors: purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use on the potential market. This can feel like a daunting task, since the flexibility inherent to fair use means there is no single, correct answer; rather, each use falls somewhere along a spectrum of “less likely to be a fair use” to “more likely to be a fair use.” Generally speaking, uses for the purpose of nonprofit education, scholarship, and research are favored as fair uses, particularly if that use is “transformative” (using the original work for a new and different purpose and/or resulting in the creation of an entirely new work) and of a defined, limited scope.
Thankfully, there are several resources available to guide you through this evaluation process. The Center for Social and Media Impact at American University has collaborated with various communities to create best practices tailored to different situational and disciplinary contexts. The American Library Association’s Office for Information Technology Policy produced a Fair Use Evaluator tool to walk you through each factor step-by-step. And if you prefer a more personalized approach, your librarian is happy to help you think through the various issues at play for your particular use (with the important caveat that we are not lawyers and do not provide legal advice).
*some information adapted from NYU Libraries’ Copyright guide