There is a lot of confusion around copyright. What can you use? What can’t you use? How much can you use?
A few years ago, I participated in an excellent Educause course on copyright hosted by Thomas Tobin (University of Wisconsin-Madison), and what I learned has been a tremendous help to me. I hope this helps you, too! (Disclaimer: I am not an intellectual property attorney. If I were an intellectual property attorney, well, you’d probably already know that.)
To determine whether you can use something without violating copyright, you need to answer four questions. Keep in mind that all four answers are on a continuum. It all comes down to the strength of your argument. Please see the
U.S. Copyright Office’s page on fair use for more information.
The PANE Test
Purpose. What are you using this content for? All of these fall under fair use: “criticism, comment, news reporting, teaching, scholarship, and research.” In academia, we’re usually pretty safe here. But this is just Part 1 of the PANE test. Three more parts to go!
Amount. How much of the work are you using? The less you use, the safer you are. Have you heard about the 10% rule where it’s okay to use less than 10% of the original work? Forget it. This little piece of academic lore came from a 1980s court case where a judge opined that you’re probably safe using 10%. There is nothing magical about 10%. While the guidance here isn’t great, the less you use, the safer you are.
Nature
of work. What kind of content are you using? Is it more creative or more factual? Copying from a creative work—such as a novel—is more likely to be viewed as a violation of copyright than, say, copying from a factual work—such as a business report. Journal articles are considered a creative work because new information is being created.
Economic impact. Is the author of the work being deprived of monetary gain because of your use of their work? The less you copy, the smaller the economic impact. The Educause webinar presenter advised that judges almost always look at economic impact first.
Examples
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You want to use a cartoon you found at gocomics.com to illustrate a concept during class.
Purpose. You’re using it for teaching. You’re probably in the green here.
Amount. You’re using the entire cartoon, not just a small percentage of it. You’re probably in the red
here.
Nature of work. Cartoons are creative works. You’re probably in the red
here.
Economic impact. Gocomics.com is a subscription site. People have to have an account to view the comics and each comic is on a webpage with advertising, so the artists are likely being paid money to have their comics on this website. They may even be paid/receive bonuses per view. If you’re not in the red
here, you’re at least in the pink.
Before you delete all of your gocomics.com cartoons from your presentation, let’s do a little research. Gocomics.com has in their FAQ a
page on educational use of their cartoons. In that FAQ, you’ll read that “you may use up to seven (7) cartoons per year at no costs (sic) as part of our fair use policy,” and that includes overheads—which tells you how long ago the content on this page was written.
If you have any questions at all about whether you can use a comic in your classroom setting, it’s better to link to it in your presentation slides rather than copy/paste it into your slide. If the revenue comes from ads, you’re showing your students the ads when you visit the page in class.
2. You want to make some chapters from a textbook available to your students as free, downloadable pdfs in your learning management system.
Purpose. You’re using it for teaching. You’re probably in the green here.
Amount. Since you’re using more than one chapter, that’s quite a bit of the book. You’re probably in the red
here. If you’re using just one chapter, you may be on safer ground, especially if that one chapter is just to help students get through the first week of classes while they wait for their textbook to arrive. See economic impact.
Nature of work. The textbook is a creative work. Some textbooks don’t feel especially creative, but they’re still creative works. You’re probably in the red
here.
Economic impact. If you’re giving students content from the textbook so they don’t have to buy the textbook, that’s a pretty strong economic impact. You’re most certainly in the red
here.
Given the number of reds and the strength of those reds, you’re likely violating copyright law if you are using more than one chapter from a textbook. If you’re using only one chapter (and students need to purchase/rent the textbook to access the rest of the chapters), you’re probably okay.
3. You’re showing an entire TV show episode or movie from Netflix to your class via Zoom.
Purpose. You’re using it for teaching. You’re probably in the green here.
Amount. If you’re using the entire video, not just a small clip from it. You’re probably in the red
here.
Nature of work. Videos are almost always creative works. You’re probably in the red
here.
Economic impact. Since Netflix is a subscription service, your showing the video to your class means that Netflix is not receiving subscription revenue from each of your students. You’re probably in the red
here.
One option is to use just a small clip from the video. Another option is to work with your librarians to get a copy of the video that you can use in class. College libraries play under some different copyright rules. Our library video licenses come with permission to show the videos to classes. Your Netflix subscription does not.
The final say
Only you can make the final determination since it’s your butt on the copyright violation line. Your awesome college librarians (who are also not copyright experts) can you help you think it through (and help you find and link to resources in the library’s databases), but the final decision is yours.
The Thomas Tobin, the Educause presenter, noted that the people who tend to get into copyright trouble are the ones who haven’t thought through the PANE test questions. Think through each question. If you end up before a judge, you can explain your reasoning. Even if the judge has a different interpretation than you do, you’ll get props for paying attention to the law.
