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Creative Commons Licensing & Fair Use for Digital Projects

This guide supports scholars who want to learn about applying Creative Commons licenses to their creative digital works. It is also a resource to find Creative Commons licensed digital media and support for making fair use judgments.

About Fair Use

Fair Use (Section 107) is a provision written into U.S. Copyright Law that strives to promote the creation of new culture by balancing the public interest in discovery and production of new works, against the rights of the creator of that work. It allows the use of copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without the permission of the copyright owner. A Fair Use evaluation is conducted by the user of the work and is based on examining four factors and taking into consideration supporting common law and best practices. It is recommended that Fair Use evaluations be documented and retained by the user of the work.

Fair Use can be confusing, as its application rarely carries with it the luxury of certainty. Every usage is evaluated independently by examining the balance of these four factors:

  • The purpose and character of the use
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work

Students are responsible for making sure that they do not violate the rights of others when making use of copyrighted materials. Student work is meant to be original, created uniquely by the student. At the same time, the scholarly process involves taking into account and expanding upon previous scholarship.

If you want to include the work of others, in the form of reproduced images or charts, music, long quotations, standard tests or computer software etc., you will need to evaluate whether simple attribution is sufficient, or if your intended use requires you to seek permission of the copyright holder. Understand that crediting the source does not eliminate the obligation to seek permission. Sources must always be credited to avoid plagiarism.

You do not need to seek permission if:

  • The work is in the public domain. Public domain works include those written before 1923, and some authored afterwards. Determining the copyright status can be very tricky. Fortunately, you can use this regularly updated chart of U.S. Copyright Terms and the Public Domain by Stanford’s Peter Hirtle.
  • The material in question is openly licensed, such as under a Creative Commons license, or the author has otherwise explicitly granted permission; look for the CC symbol displayed on the work. Many sites and blogs are licensed this way. Investigate open access journals for research in your discipline.
  • You follow fair use guidelines.

Fair Use Explained by Digital Media Law Project.

 

The 4 factors of Fair Use

Effect on the Market

Using a copy of the work that was legally purchased, making only a few copies, or not being able to find a copy for purchase or licensing favors Fair Use. Using a copy that could be purchased or licensed at a reasonable rate, making many copies or making them widely available, or impacting the commercial market or potential market of a work does not favor Fair Use.

Purpose of Work

What is the reason for using the work? Not-for-profit uses, such as teaching, research or scholarship, favor Fair Use, as does transformative use. Opposing Fair Use are commercial or entertainment uses, or a use that duplicates or displaces the market for the original resource.

Nature of the Work

Published works or non-fiction works generally favor Fair Use. Unpublished or highly creative works do not. Facts themselves are not copyrightable, although a particular expression of them may be, depending upon how creative the presentation is.

Amount Used and Substantiality

Both quantity and quality are factors. Using a small portion of a work, or “just enough” favors Fair Use. Using the whole work, a large part of it, or the “heart of the work” does not.

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