By Douglas Fehlen
In academic settings, fair use is perhaps the single most important provision of copyright law. Fair use allows students and teachers to reproduce excerpts from protected works for the purposes of commentary, criticism or parody without contacting copyright owners for permission. It allows a literature professor to display citations from a copyright-protected novel during class and lets a student include a magazine excerpt within his or her academic work.
Fair use is widely cited to justify use of copyrighted works, but it is also quite often misunderstood. The primary reason for this? There are not strict regulations which can be applied to using others' work. For example, copyright law does not state that a certain number of protected words may be reproduced or give precise purposes protected source material can be utilized for. Instead, fair use guidelines are much more vague, forcing individuals to rely on their judgment. The four factors to consider are:
Purpose of the use. Text may be incorporated into works intended to add to or comment upon the source material's meaning (for instance, when used to provide historical context in an academic article).
Nature of the work. Typically more latitude is given to users incorporating factual content (for example, a magazine profile of a celebrity) than fictional material (such as a novel). Additionally, published works may by be cited under more liberal guidelines than unpublished works.
Amount of material used. Generally speaking, the more material you use, the greater the likelihood of violating fair use privileges. Factoring into this is the length of the work being cited (for instance, whether you're reproducing a few lines from a short poem or one hundreds of verses long). The specific content cited can also play a role.
Affect on the market. Using works in a way that potentially deprives copyright owners of income is typically seen as infringement (for example, a photocopied version of a book).
Other Provisions Not Requiring Permission
Fair use is an important component of copyright law for academic settings, but it is not the only clause that allows for permission-free use of material. Legislation dictates that materials in the public domain are not subject to copyright laws and can thus be used without contracts or fees. Documents may enter the public domain if copyright has expired, or if it was not lawfully renewed. Some authors also choose to designate works for public domain, making them available to anyone. Educators and students can also freely draw from materials that never fall under the purview of copyright law, such as works created by federal employees for government purposes.
Another important avenue available to academics is 'classroom use,' a designation that allows teachers to utilize copyrighted works in classroom settings without contacting rights holders. Because of the special circumstances found in the classroom, the U.S. Copyright Offices makes available guidelines for 'Reproduction of Copyrighted Works by Educators and Librarians'. Unlike the fair use provisions discussed above, these guidelines are not part of the 1976 Copyright Act. They are, though, observed by federal and legal entities so that individuals following them can be reasonably confident they are lawfully observing copyright.
If you would like to use material in a way not permitted by fair use, public domain or classroom use provisions of copyright law, it's likely necessary for you to obtain permission from the appropriate rights owner. Fortunately, most schools and higher ed institutions have procedures in place to secure clearance of copyrighted material targeted for curricula, course packets and other classroom-related materials.
Education institutions may employ a clearance services organization, for example, or assign the task of securing permissions to an affiliated bookstore or department administrator. If gaining permission to use a copyrighted work falls to you, there are some simple steps you can follow.
1. Figure out who owns the material. This task is sometimes easy, such as when prominent notice of rights ownership is indicated on the copyright page of a book. Other times it can be more difficult, such as in the case of unattributed text on a website of indeterminable ownership.
2. Determine your needs. In asking for permission, it's important to articulate how you plan to use a copyright holder's material. This factor can significantly influence potential permissions fees. For example, requesting worldwide rights to include material in a book you're publishing may be more costly than referencing source material in a presentation packet.
3. Contact the rights holder. A good first step in securing permission is to contact the company that publishes the source material - whether that is a book, audiovisual product, website or another media. Often companies handle permissions queries for authors, employing a standard protocol to make the process efficient.
4. Be prepared. Securing permission can take a few months or more, depending on the entity involved. Putting off sending your request can leave you in a precarious position, especially if a rights holder is long in getting back to you. A time crunch may not allow you to use a work.
5. Be persistent. Unfortunately, permissions are often not the first priority of publishers and other companies. It may be important for you to follow up. Additionally, you may find that rights have been transferred to another person or company so that you have to begin the process again.
While the world of copyright law can seem confusing, don't feel you have to negotiate it without assistance. Most institutions have people on staff who can help, whether that is a librarian, curriculum developer or legal specialist. Plentiful resources, including in-depth guidelines and samples of permissions agreements, can also be found online.
Learn about the Copyright Act of 1976 and how you can protect your work.