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Education Research Guide

Copyright, Fair Use, and Creative Commons

Understanding copyright, fair use, and other parts of intellectual property right law is particularly important for educators since they regularly incorporate others works into their teaching.

Copyright law, outlined in Title 17 of the United States Code, gives the owner of a copyrighted work the exclusive right to reproduce, distribute, adapt, perform, and display their work.

There are exceptions to this exclusive right, some of which are specific to educational settings. Two of the most important exceptions for educators are fair use and 17 U.S. Code § 110, which enable educators to use copyrighted materials for face-to-face and distance education purposes.

  • The fair use doctrine, outlined in 17 U.S. Code § 107, permits limited use of copyrighted material without acquiring permission from the rights holders. This is done to balance the rights of copyright holders with the needs of scholars to promote teaching, research, and the free exchange of ideas. This is done through an analysis of the four fair use factors. They are as follows:

1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.

2) The nature of the copyrighted work

Using material from primarily factual works is more likely to be fair than using purely fictional works

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.

4) The effect of the use upon the potential market for, or value of, the copyrighted work

Uses that harm the copyright owner's ability to profit from his or her original work by serving as a replacement for demand for that work are less likely to be fair uses

  • 17 U.S. Code § 110 (1) contains exemptions for the performance and display rights essential to nonprofit, educational “physical” classroom settings while § 110 (2) contains the exemptions for digital transmission of performances and displays of certain works in accredited, nonprofit online and distance education settings.

Creative Commons, while not part of copyright law, is another important tool for using and sharing works. Creative Commons licenses allow the creator of a work to communicate which exclusive rights they reserve and which they waive. This allows others to understand under what circumstances they are allowed to use the work. 

Helpful Resources

Navigating copyright law can be challenging but fortunately there are a number of resources to help educators.

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