Author: Jillian R. Yarbrough and Robin E. Clark

[dropcap]Y[/dropcap]ouTube videos, TED Talks, blogs, and journal articles. As faculty we have all these electronic resources and more available to us to share with our online students. But, what copyright policies should we consider before we post an electronic resource to our LMS? This article offers a brief overview of the basics of copyright and how fair use is applied. It is important to understand that, unlike a patent, a work is copyrighted as soon as it is created, provided the work is original and fixed in a tangible medium. There is no need to file any paperwork for copyright protection. By capturing your idea on a story board, in a paper, or with a video, you are protected by copyright. Why does this matter? Because it is important to understand that everything on the Internet is copyrighted and owned by someone. Now, as educators, we rely primarily on the doctrine of “fair use” to use copyrighted material in educational institutions for educational purposes, including K-12 schools, colleges, and universities. Fair use is a statutory provision of the Copyright Act that makes the reasonable and limited use of copyrighted materials permissible without obtaining consent of the owner of the copyright. This means, in many cases, content that we find on the Internet can be used for instructional purposes if our use fits under the umbrella of “fair use.” The Copyright Act gives four factors to consider when determining whether the use of a work will be considered fair use: 1. the purpose and character of the use; 2. the nature of the materials being used; 3. the amount and substantiality of the portion of the materials used in relation to the materials as a whole; and 4. the effect of the use on the value of the copyrighted materials. Unfortunately, there is no exact mathematical formula that we can use to determine whether our use of web-based materials will be fair under the Copyright Act. It is rather a matter of degree. Courts balance the number of “bad” factors against the number of “good” factors to determine if the outcome is tipped toward the violation or non-violation end of the spectrum. The best thing is to minimize the level of violation on each of the four factors. To help you do so, we’ve crafted four questions to ask yourself before posting a resource in your online classroom.

1. What is the purpose of the use? It’s important to consider whether the material will be used for commercial purposes or for nonprofit educational purposes.  According to the U.S. Copyright Office (2018), courts examining the issue of fair use are more likely to find that nonprofit educational purposes fit the criteria of fair use than commercial applications. General guidelines permit an educator to make a copy of chapter from a book (other than a textbook), an article from a periodical, a short story, short essay, short poem, a chart, graph, diagram, drawing, cartoon or picture and a with a notice of copyright affixed the portion the information can be shared with students. Educational publishers do not consider it a fair use if the copying provides replacements or substitutes for the purchase of books, reprints, periodicals, tests, etc. (Stim, 2019).

2. Does your use of the materials transform or repurpose the materials for a new audience? Generally, fair use can apply if the use is transformative. In other words, a work is transformed when the original material is modified by adding new expression, meaning, insights, or understandings. Pamela Samuelson (2009) has identified three categories that may be considered transformative under fair use: 1. Transformative, creating new works that draw upon pre-existing work, 2. Productive, using quotes and/or photographs for the purpose of writing a commentary and 3. Orthogonal, using copyright materials in a purpose different from the original purpose. Transformative use can include criticizing a quoted work, summarizing an idea in the original work in order to defend or rebut, or creating a parody of the original work.

3. How much of the materials are you using? A third question concerns the amount of copyright material being used. To meet the requirements of fair use, one should use the least amount of the material necessary to meet the educational need. The less material used, the more likely that the copying will be recognized as fair use. While in the past, many believed they would be protected under fair use if they were using less than 250 words or less than 10 percent of the work, there is no automatic number or percentage that guarantees fair use under all circumstances (DeVries, 2015). Certainly, the amount of material used matters, but the exact portion of the work also matters. For example, was the portion used the most significant or memorable part of the material? If the answer is yes, it may no longer be considered fair use. In other words, the amount used is not just measured quantitatively, but also qualitatively. For example, a short clip from a movie is usually acceptable but possibly not acceptable if the segment encompasses the most extraordinary or creative elements of the film (Temple University, 2018).

4. Will your use of the material cause a loss of money to the owner? The fourth factor is whether your use deprives the copyright owner of income or undermines a new/potential market for the copyrighted work. Depriving a copyright owner of income will likely not be considered fair use. This is true even if you are not competing directly with the original work. For example, if an instructor copies parts of a text book and sells the excerpts within a course packet so students no longer need to purchase the original text, this would result in loss of money for the owner and would not be considered fair use.

Ultimately, whether a work is considered fair use is determined solely by our courts. This means that even if educators do their best to reduce the amount of copyright infringement, the originators of materials may still raise concerns. But by being mindful of what courts look for to determine copyright infringement, educators can reduce their exposure while providing students with the benefit of the wealth of resources available on the Internet.  References DeVries, H. (2015). What is Fair When it Comes to Fair Use? Forbes. Retrieved from: https://www.forbes.com/sites/henrydevries/2015/07/22/what-is-fair-when-it-comes-to-fair-use/#311cc92b5134 Samuelson, P. (2009). Unbundling fair use. 77 Fordham Law Review, 2537, 2548-2549. Stim, R. (2019). Educational Uses of Non-coursepack material. Stanford University Library. Retrieved from: https://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/ Temple University. (2018). Copyright for educators: A guide to the law and fair use. Temple University. Retrieved from: https://guides.temple.edu/c.php?g=348649&p=2351948 U.S. Copyright Office. (2018). More information on Fair Use. Retrieved from: https://www.copyright.gov/fair-use/more-info.html Jillian R. Yarbrough is a clinical assistant professor of management and Robin E. Clark is a clinical assistant professor of business law at West Texas A&M University.