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logo for Code of Best Practices in Fair Use for OER

Fair Use Best Practices for Open Educational Resources Endorsed by ARL

Iconic news images from the civil rights movement of the 1950s and 1960s can be powerful tools to help students ground events like the murder of George Floyd in their rightful historical context. But uncertainty and anxiety about how, and to what extent, copyrighted materials can be used within open educational resources (OER) has presented challenges to creators of OER. Fair use is a critical component of ensuring high-quality OER are created and used on campuses and in education nationwide. To help OER creators meet their pedagogical goals and support the highest-quality student learning, the American University Washington College of Law released their new Code of Best Practices in Fair Use for Open Educational Resources last week.

Endorsed by the Association of Research Libraries (ARL), “this Code is a tool for educators, librarians, and authors to evaluate common professional scenarios in which fair use can enable them to incorporate inserts, including those protected by copyright, to create OER. It can provide groups working on OER projects with a shared framework for evaluating and understanding when and how to incorporate existing content to meet pedagogical needs.”

Research libraries are key partners with academic faculty in creating and publishing high-quality OER. Many libraries also provide consultations on what falls within fair use for copyrighted materials. According to Toby Graham, university librarian and associate provost at the University of Georgia, “this document clarifies key areas where there is consensus not only on what is OK, but on applications that exemplify why fair use exists in the first place.”

Apple v. Corellium: Some Early Takeaways for Software Fair Use

By Brandon Butler

What uses of software are fair? What uses are transformative – the category of use that courts most consistently find to be fair? The question is increasingly urgent for libraries, archives, and museums, as we already live in a world where most information (from government archives to fine art) is stored in digital formats that can’t be read without the right software. In addition, software itself is also an artifact and a source of information that researchers want to consult and explore. Fair use is a key tool in library digital stewardship, but fair use’s application to software is rarely, if ever, litigated.

Read the full blog: http://blogs.harvard.edu/copyrightosc/2021/02/23/fair-use-week-2021-day-two-with-guest-expert-brandon-butler/

What is Fair Use?

By Copyright Alliance

Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. But copyright law does establish four factors that must be considered in deciding whether a use constitutes a fair use.

Read the full blog: https://copyrightalliance.org/faqs/what-is-fair-use/

Fair Use/Fair Dealing Week 2021 Day 1 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. The week is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 1 of Fair Use/Fair Dealing Week 2021! Don’t see yours? Email kaylyn@arl.org to get it added! You can view previous roundups here.

Blog Posts/News

Can Fair Use Survive the CASE Act?,” Kenneth D. Crews, Copyright at Harvard Library blog

Celebrate Fair Use Week 2021,” Georgetown University Library

Fair Use Week 2021,” LeEtta Schmidt, University of South Florida Libraries’ EdLib Report

Fair Use Week 2021: Promoting Ideas, Creativity, Learning, and Culture,” Florida Atlantic University Libraries

Fair Use Week Celebrates Copyright Flexibility for All,” Liz Hamilton, Northwestern Libraries Blog

If You Could Be the Judge of Fair Use…,” Patricia Aufderheide, Center for Media and Social Impact Blog

We’re All Fair Users Now,” Katherine Klosek, ARL Views blog

What Is Fair Use Week?,”  The Catholic University of America University Libraries

Events

Text & Data Mining in the Digital Humanities,” keynote lecture by Paula Samuelson, roundtable discussion with Natalie Meyers, Katie Walden, Elliott Visconsi, and Mark McKenna, hosted by University of Notre Dame Hesburgh Libraries

The End of Library Ownership?,” a one-hour conversation with Meredith Rose, Kyle Courtney, Jason Schultz, and Aaron Perzanowski, hosted by Library Futures

Resources

Call to Action: Share Your Feedback on Controlled Digital Lending,” Authors Alliance

Code of Best Practices in Fair Use for Open Educational Resources, Meredith Jacob, Peter Jaszi, Prudence S. Adler, and William Cross, American University Washington College of Law and Center for Media & Social Impact

Strengthening Canadian User Rights through Shared Understanding: Adapting the Codes of Best Practices in Fair Use for Canada, Mark Swartz and Graeme Slaght, Canadian Association of Research Libraries

Fair Use Week 2021

By LeEtta Schmidt, University of South Florida Libraries

One of your research sources makes a provocative statement with authority and insight. You quote this source in your latest article to illustrate how other scholars are analyzing your topic. You have copied and reprinted part of their work, but copyright law makes an exception for this fair use.

A news article reports an event and witness insight that would benefit the students in your class, and help them fully engage with the course content. You share a portion of this article with your class.  You have made copies and distributed the work, but copyright law makes an exception for this type fair use.

Read the full blog: https://lib.usf.edu/edlibreport/2021/02/09/fair-use-week-2021/

If You Could Be the Judge of Fair Use…

By the Center for Media and Social Impact

Is fair use a “grey area”? Not if you know the law. Then it’s a flexible, robust tool for digital culture. Test your knowledge!

Happy Fair Use Week! Fair use, the right to reuse someone else’s copyrighted material for new purposes that don’t intrude on the copyright holder’s market, is often described as “risky,” “uncertain,” or a “grey area.” But today’s fair use has become a pretty low-risk, high-value activity. In fact, it’s so routine that a lot of people don’t even realize they’re employing fair use. Students quote scholars in their term papers–that’s fair use. Journalists quote from corporate documents–ditto. Television news features someone whose ringtone accidentally goes off–also fair use. Filmmakers use fair use to make their points visually or auditorally (for instance a montage of riffs from pop-songs connoting a historical moment, or a collage of magazine covers, TV news clips and audio). Podcasters include clips from a news program to catch you up, to critique it, or to illustrate a point. Again, fair use.

Read the full blog: https://cmsimpact.org/fair-use-blog/if-you-could-be-the-judge-of-fair-use/

Can Fair Use Survive the CASE Act?

By Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright. Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider. The defense of fair use will also be on the docket.

Read the full blog: http://blogs.harvard.edu/copyrightosc/2021/02/22/fair-use-week-2021-day-one-with-guest-expert-kenneth-d-crews/

photo of Bernie Sanders wearing mittens seated in a chair being lifted up into blue sky by huge bunch of multicolored balloons

We’re All Fair Users Now

Today kicks off Fair Use Week, an annual celebration of the important doctrine of fair use/fair dealing. Previously, ARL has debunked common fair use myths, and reviewed the fundamentals of fair use. This year, in acknowledgement that our world has changed since February 2020, we highlight three ways that fair use has allowed us to move our lives online during the COVID-19 pandemic.

First, just a little background. Fair use is an important right that is built into the US Copyright Act and allows the public to use copyrighted materials without asking for permission. Described by Justice Ruth Bader Ginsburg as a built-in accommodation to the First Amendment, fair use balances the exclusive rights of authors to reproduce and distribute their works with the rights of users to borrow, lend, and transfer those works. This balance is critical to the constitutional purpose of copyright: to promote the progress of science and useful arts. Scholarship builds on previous work, and researchers and educators rely on the fair use doctrine to create high-quality learning objects and to incorporate the full breadth of prior work into their current inquiries. Artists in all disciplines rely on fair use to build upon others’ work in their own creations. Ok, on to the examples.

Teaching and Learning

Teaching and learning have mostly moved online, but even before COVID-19 educators and learners could rely on fair use for online education. To support students, librarians, and open educators, American University College of Law released a Code of Best Practices in Fair Use for Open Educational Resources. Developed in consultation with practitioners and other experts, the code includes principles for how fair use may apply in common open education scenarios. For more on open educational resources (OER) this week, check out the Association of College & Research Libraries (ACRL) webinar, “Foundations of OER, on Wednesday, February 24. And don’t miss the Canadian Association of Research Libraries (CARL) webinar, “Implementing the CARL Copyright OER for University Instructors and Staff on Campus,” on Thursday, February 25.

Accessibility

HathiTrust Digital Library is a prominent example of the benefits to libraries and society from courts deciding in favor of fair use in technology cases. Hathi relies on fair use for two key functions: (1) providing accessible texts for people who are print-disabled and (2) allowing access to a database of scanned books that can be used for nonconsumptive purposes like text and data mining. In determining that providing access to works for people with print disabilities is a fair use, courts cited the rationale behind the Americans with Disabilities Act, and the legislative history of the Copyright Act itself.

Explosion of Creativity

During the pandemic, we have seen a proliferation of online creativity, sharing, and access, such as art museums offering virtual access, online performances, or the ubiquitous Bernie mittens meme. Noncommercial expressions of creativity like these rely on fair use. Read this blog post, “Copyright for Meme-Makers,” by our colleagues at Public Knowledge, then apply the four-part test to the Bernie meme. Based on your analysis, is it fair use? Why or why not?

Fair use is intentionally flexible to respond to new technologies and ways of working. But it’s important to note that these activities were all possible even before COVID-19. Fair use is meant to be used, and we hope this post illustrates its necessity.