Intro to the Relay Library

Introduction

Copyright and fair use are concepts that you’ll encounter in your studies at Relay School of Education and in your own classrooms. We hope that you call on a variety of materials to make your assignments and classroom instruction the best that they can be. To that end, we want to provide you with information on fair use, copyright, and attribution so you may make informed decisions about what resources you can use in your work and classroom and how to properly give credit for those resources as an Relay student and a teaching professional.

Key Terms

Here are some key terms that are helpful to know when thinking about copyright!

Copyright is the area of law that deals with the creation, ownership, sale, and use of creative works. It was created to promote sciences (i.e. advancement of knowledge) and useful arts while protecting creator’s rights. In the U.S., copyright is afforded to any original work in a fixed medium, published or unpublished. You do not need to apply for copyright; rather it is granted as soon as the material exists in a fixed format.

Fair use is a piece of the U.S. copyright law that allows for limited uses of copyrighted material without requiring permission from the rights holders. It also gives credence to copying material for a limited or transformative purpose. It is particularly relevant in educational settings.

Public domain is a repository of materials that anyone may use, build on, or alter without first obtaining copyright permission. Works included in the public domain include anything published prior to 1923, all government-created materials except for classified information, and works the creators designate as property of the public domain. 

Creative Commons is an organization that provides alternative approaches to traditional copyright by allowing a creator to choose customized and more lenient licenses for his/her materials. Using Creative Commons licenses, authors may specify who may use or alter the materials, for what purpose, what attribution is required, and what the terms of the license apply for any altered works.

Fair use is an important concept to your studies at Relay and to your use of third party materials in your own classrooms. Fair use allows you to use portions of cited third party materials without permission from the rights holder. However, it can sometimes be confusing to determine when your use of copyrighted materials legally qualifies as fair use. This is particularly complicated, because copyright law is intentionally ambiguous. By performing a fair use analysis, you can help answer, with some degree of certainty, whether your use of copyrighted materials qualifies as fair.

Unfortunately, fair use is not a clear-cut recipe – but, by considering the five guidelines below, you can determine the strength of your case for fair use. 

1. Purpose and character of the use – This factor has to do with how the work will be used. As Relay graduate students and K-12 teachers, you have an advantage in this area, since fair use favors non-profit and scholarly / educational purposes.
2. Nature of the original work – The most critical consideration for this guideline is whether the work is published or unpublished. Unpublished works make a more challenging case for fair use, since their use makes an author’s work public before he/she has decided to do so. Another consideration is whether the work is more factual or creative – fair use prefers factual works.
3. Amount and substantiality of the portion used – This factor considers the amount of the work used and which components of the work are selected. Usually, it is better to use smaller amounts of the original work; however, the amount is proportional to the length of the work. While there is no set amount that qualifies as fair use, using 10% or less of shorter works is recommended. Substantiality considers whether you are using something from the “heart” of the original work – which would be less fair – versus using something that is more peripheral.
4. Effect of the use on the potential market for or value of the source work – This is a more ambiguous factor that is difficult to substantiate. Essentially, it asks if the portion of the work that you are using could substitute and thus replace the sale of the copyrighted work in the marketplace. The use can still potentially be fair even if it might cause market harm.
5. Transformative use – Under fair use, one is allowed to create a derivative work so long as it is transformative. A transformative work is one that uses the source work in new or unexpected ways, such as a parody (consider, for example, a skit on Saturday Night Live that spoofs a political conference).

The Copyright Advisory Network built a Fair Use Evaluator tool, which assists in performing a fair use analysis using the first four categories listed above.

During your in-person class sessions, you are allowed a bit more liberty with materials thanks to the Classroom Use Exemption clause in U.S. copyright law. This enables broader rights to perform or display any work in class (so long as they are legitimate and/or purchased), without seeking permission, giving anyone payment, or having to deal with the complications of fair use. However, it is important to note that this exemption applies only to in-person instruction, and therefore does not apply to online teaching.

The Classroom Use Exemption also does not protect entertainment-based uses.  For example, it would be acceptable to show the Karate Kid clip in class without seeking permission if the film were used for an instructional purpose.  However, it would not be acceptable to play the Karate Kid for students after school as part of a social event or other non-academic event.

Fair use also protects in-class distribution of work. You are allowed to distribute materials in a one-off situation where securing permission from the copyright holder would inhibit learning. As a plain-language example, one could distribute one copy of a copyrighted article per student the first time that article is used in a class session. If that article were used in future sessions, permission would need to be sought from the copyright holder.

The University of Minnesota libraries developed a Copyright Decision Map for determining if something is considered fair use. Note that to use the resource fairly, we are linking to the resource rather than embedding it (which we may have been able to do after securing permission from University of Minnesota).

You can always use materials that are in the public domain or that have Creative Commons licenses allowing for educational uses. Additionally, many of materials made for educational uses include the ability to make copies and allow multiple distributions.

If you also deliver instruction electronically, as we do at Relay, different rules apply than those for in-person instruction. The Classroom Use Exemption (CUE) law does not apply to online learning. As a result, the use of copyrighted materials in online instruction is only legal if it qualifies for fair use. The 2002 Technology, Education, and Copyright Harmonization Act (TEACH Act) grants some of the flexibility that CUE allows; however, the TEACH Act is not as clearly articulated.

The TEACH Act allows you to perform and display nearly all types of copyrighted works. It also permits you to store copyrighted content for brief periods of time (i.e. a semester) and transmit digital materials to students in different locations. Finally, it allows you to create digital versions of print or analog works, so long as a digital version does not already exist.

In order to qualify for TEACH, you must ensure that the copies are lawfully acquired (i.e. purchased) and are not materials that are primarily marketed for online use (i.e. electronic textbook). The materials must also be used in mediated instructional activities that are analogous to the activities of a face-to-face class session. Only students enrolled in the course may have access to the material and reasonable efforts are made to prevent students from distributing the material – practically, this means that the work will need to be delivered through a password-protected interface. Your school must have a copyright policy, and this work must reference it, as well as inform students that the work is protected by copyright.

The Copyright Advisory Network built the Exceptions for Instructors tool, which helps determine if a particular use falls under the TEACH Act.

Still have questions? Looking for a thought partner to help you navigate the nuances of copyright law? Relay's library team can help! Please contact us at library@relay.edu with your fair use and copyright questions.