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Introduction to Fair Use & the Public Domain: Home

An explanatory guide of "fair use," the critical context surrounding it, and helpful tools and resources.

Welcome

Welcome students, staff, and faculty.  This is an explanatory guide of the concept of "fair use," some guidelines and best practices, and critical contextual information that places fair use in proximity to adjacent topics like the public domain, "free use" materials, Creative Commons, copyright, copyright infringement, and plagiarism.  I've also included a helpful fair use tool & resources for students and educators to engage in ethical creativity.  Enjoy!  (Tip: To find the tagged concepts on this webpage faster, hold the 'CTRL' + 'F' keys to open the Find box on PCs ['Command' + 'F' keys on Macs] to shortcut to keywords like "free tool", "free use", and "free access".)

Reference & Instruction Librarian

Recommended Tool

Fair Use Checklist

The Fair Use Checklist is a tool to help creators, educators, artists and the like working with copyrighted content acting in good faith to evaluate their usage of that content.  The checklist is made available for public download under a CC BY license on Columbia University Libraries' website as a .pdf with credit to Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville).  Click the icon below to be redirected to their download page.  #Free tool

The Copyright Advisory Services of Columbia University Libraries recommends that users of copyrighted content fill out and date the Fair Use Checklist document, keep pertinent notes with it, and store it somewhere safe with any related project files so that there is documented evidence of the decision-making process.  This could prove critical if the initial fair use assessment is later questioned.  

ARL Resource For Librarians

"The Association of Research Libraries (ARL) presents the Code of Best Practices in Fair Use for Academic and Research Libraries (PDF), a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education. The Code was developed in partnership with the Center for Social Media and the Washington College of Law at American University." (ARL.org, 2013)

arl infographic thumbnail

(Click the image for a detailed vertical .pdf infographic.)

Introductory Reading

Fair Use

Rich Stim, an Attorney at law, Nolo Legal Editor, & blogger offers a succinct definition for fair use, which is sometimes described as a legal doctrine, an ethical practice, and a copyright principle:

"...fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work..." (Stim 2010)

It's also done in such a way as to not infringe on the legal ownership of the copyright and rights thereof.

"Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use" (Copyright.gov, n.d.).  There are four factors that the U.S. Copyright Office encourage us to consider when evaluating fair usage:

  • the purpose and character of the use
  • the nature of the copyrighted work to be used
  • the amount and substantiality of the portion used
  • the effect of the use on the potential market for it, or the value of the copyrighted work

With so many factors to consider, and the legitimate concern of committing copyright infringement, it can be difficult to determine whether you are engaging in fair use.

Public Domain

If a work exists within the public domain, copyright concerns are null, and the work is available for "free use" because it is now "owned" by the general public --however that doesn't mean that you can take credit for something you didn't create.  A good example would be Charles Dickens' "Great Expectations..."  Because his works are now in the public domain due to their age and the length of time since Dickens' death, you can freely use and repurpose his materials.  You could shoot a film short adaptation of the story and put it up on YouTube or use excerpted dialogue and remix it into a musical chorus and sell the musical track online, but that doesn't mean that you can re-publish the entirety of the book and name yourself as the author to gain exclusive rights to royalties.  Copyrights expire and when they do, the works they were attached to enter the public domain.​  If you want to determine whether something is in the public domain, check out the [copyright law FAQ page] from New Media Rights.  Also, please check out the tab for "Public Domain Resources" at the top of this LibGuide.

Copyright Infringement

It will help to understand what copyright infringement is in order to understand the importance of practicing fair use.  According to the U.S. Copyright Office, copyright infringement is "when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner," (Copyright.gov, n.d.) and can result in significant legal and financial penalties.  It's also important to understand how that violation differs from plagiarism.  According to Jonathan Bailey, a copyright and plagiarism consultant, "copyright infringement is a construct of the law", whereas "plagiarism is a construct of ethics" (2013).  To put it another way, copyright infringement is chiefly a legal offense, while plagiarism is primarily an ethical offense, but more on that later. Copyright infringement is sometimes referred to as piracy, typically when it occurs in digital mediums, and may result in litigation or criminal charges.

Plagiarism

To clarify further, plagiarism is the misappropriation of someone else's content, a deliberate or inadvertent failure to attribute a work's authorship accurately, and a breach of ethics.  The most common form of plagiarism is improper citation.

Tip: There are many resources available to help students utilize proper citation, including the PVAMU [librarians], the PVAMU [Writing Center], Purdue University's [OWL], and the [Copyright and Plagiarism LibGuide].

Failing to give credit where it is due for someone else's ideas, expressions, specific language usage, and articulated thoughts is the act of plagiarizing.

Consequences of Plagiarism

In schools and higher education, plagiarism is considered a form of academic dishonesty and may result in serious consequences, including, but not limited to, academic suspension and even expulsion.  (More information on this is available online at the Office of Student Conduct's webpage for Prairie View A&M University students.)  While it's not a crime per se, it may constitute copyright infringement at times; there is heavy overlap between these two types of offenses.

Did You Know? There is [legal precedent] in the U.S. for a student winning a lawsuit against a classmate whose plagiarism resulted in their erroneous expulsion from their university.

It's possible to commit plagiarism without copyright infringement, and it's possible to commit copyright infringement without plagiarism.  It's also possible to commit both simultaneously.  The concepts are not interchangeable, but they do share a significant amount of conceptual overlap.

Fortunately, there are tools and resources available for librarians, faculty, teachers, artists, and students wanting to ethically and responsibly share, critique, reuse, or repurpose content without committing ethical or legal violations.  Please see this guide's Recommended Tool box for help with practicing Fair Use, and the Recommended Resources box or Public Domain Resources tab for ethical creativity and sharing solutions.

Understanding Copyright, Public Domain, and Fair Use

Recommended Resources

Creative Commons

From their website's FAQ: "Creative Commons is a global nonprofit organization that enables sharing and reuse of creativity and knowledge through the provision of free legal tools. Our legal tools help those who want to encourage reuse of their works by offering them for use under generous, standardized terms; those who want to make creative uses of works; and those who want to benefit from this symbiosis. Our vision is to help others realize the full potential of the internet." (2018)

infographic of most to least open creative commons license types

(Click the infographic above to learn more about Creative Commons Licenses.)  #Free tools

Download a sample infographic created by Mrs. Donahue with a CC-BY-NC-SA license appended.

Pixabay

From their website's FAQ: "Pixabay is a vibrant community of creatives, sharing copyright free images and videos. All contents are released under the Pixabay License, which makes them safe to use without asking for permission or giving credit to the artist - even for commercial purposes."  #Free use

TurnItIn

TurnItIn is a plagiarism prevention service that will cross-reference your writing submissions with hundreds of millions other students' papers and online research to ensure authenticity and originality in the authorship.  All PVAMU students and faculty have access to TurnItIn through eCourses and can view online instructions on how to submit assignments here.

Project Gutenberg

Project Gutenberg is a volunteer-managed online archive of digitized cultural works to "encourage the creation and distribution of eBooks" and was the first provider of free electronic books.  "It was founded in 1971 by American writer Michael S. Hart and is the oldest digital library." (Gutenberg:About, 2019).  Most of the items in its collection are the full texts of public domain books.  There are over 58,000 classic book texts to choose from and they are freely available to download in various formats.  #Free access

Raquel K. Williams Donahue has an ALA-accredited M.L.S. and is not a lawyer.  While this guide attempts to help users of copyrighted content engage in best practices for fair use, it does not constitute legal advice.  For legal consultation regarding copyright concerns, please contact a lawyer who specializes in Intellectual Property Law.  FindLaw offers directory listings by city and state.

Please see this LibGuide's bibliography for citation sources and recommended reading.

Bibliography [APA Format] / Recommended Reading

Association of Research Libraries. (2013, August). Codes of best practices in fair use. Retrieved from https://www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices.

Bailey, J. (2013, October 7). The difference between copyright infringement and plagiarism. Plagiarism Today. Retrieved from 

https://www.plagiarismtoday.com/2013/10/07/difference-copyright-infringement-plagiarism/.

Crews, K. D. & Buttler, D. K. (2008, May 14). Fair use checklist. Copyright Advisory Services at Columbia University Libraries. Retrieved from https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html.

Creative Commons. (2018, August 29). Frequently asked questions. Creative Commons. Retrieved from https://creativecommons.org/faq/.

Gutenberg.org. (2019, February 10). About. Gutenberg. Retrieved from https://www.gutenberg.org/wiki/Gutenberg:About.

Irving, S., & Nolo (Firm). (2017). Nolo’s Encyclopedia of Everyday Law : Answers to Your Most Frequently Asked Legal Questions (Vol. 10th ed). Berkeley, CA: NOLO. Retrieved from

http://pvamu.idm.oclc.org/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=1421995.

New Media Rights. (2017, January 17). VII. How do I figure out if something is copyright protected or public domain? New Media Rights. 

Retrieved from https://www.newmediarights.org/book/vii_how_do_i_figure_out_if_something_copyright_protected_or_public_domain.

Stim R. (2010, October). Welcome to the public domain. Copyright & Fair Use. Retrieved from https://fairuse.stanford.edu/overview/public-domain/welcome/.

Stim, R. (2010, October). What is fair use? Copyright & Fair Use. Retrieved from https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

TurnItIn. (n.d.) About us. Retrieved from https://www.turnitin.com/about.

John B. Coleman Library
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