After an introduction to the four factors of the fair use exception to copyright, students apply the first two factors to a particular scenario that parallels a real court case. A discussion follows.
Learning Outcomes
Students will be able to:
- List the factors of fair use.
- Apply the purpose and nature of use factors of fair use to a hypothetical scenario.
Relevant Threshold Concepts
- Information has value.
Suggestions for Use
- This activity should be helpful in classes where students may be using copyrighted works for presentations or other multimedia projects.
- This activity should be followed by Activities 12B and 12C.
- Although U.S. copyright law provides exclusive rights to creators, the fair use exception often applies to the academic work of students who want to use materials copyrighted by others. Basic knowledge of fair use will help students make ethical and thoughtful choices about their use of copyrighted media and text in assignments and in their careers after college.
- Students should use the same Handout 12A-1 for Activities 12A, 12B, and 12C. So be sure you collect and save the handouts students start in Activity 12A, use in Activity 12B, and finish in Activity 12C.
Pre-Class Preparation
- Review the handout for this activity.
- Review In-Class Procedure below.
- Decide whether you want students to complete Handout 12A-1 on paper or electronically.
- If you decided on electronic handouts, put Handout 12A-1 in your learning management system.
- If you decided on paper copies, print Handout 12A-1 (1 copy per student and 1 for yourself).
- Read Chapter 12, Fair Use, of Choosing & Using Sources.
- Prepare introductory remarks, or use the Possible Script, if it is helpful.
- Decide whether students will work individually or in groups. If they are in groups, having others to discuss with will probably mean they are likely to learn more. But working in groups will require more time.
- Consider assigning students to read before class Chapter 12, Fair Use, of Choosing & Using Sources.
- Download and/or print In-Class Procedure and Possible Script so you can take them with you to class.
In-Class Procedure
- If you’re having students use printed copies of Handout 12A-1, pass them out or set them where students can pick them up as they come in.
- If you’re having students use an electronic Handout 12A-1, tell them how to find and open it.
- If you’re having students work in groups, have them get into groups and assign numbers to the groups. Tell them that to the extent possible, the conclusions they come to about the factors should be group conclusions, not the conclusions of individuals.
- Introduce students to the activity, using the Possible Script below or your own remarks. You may want to project the 4 factors section of the Possible Script to help students focus on them.
- Ask students to complete half of Handout 12A-1 in 8 minutes. They should complete only the parts for Factor 1 (Purpose) and 2 (Amount) for this activity.
- After 8 minutes, take up Factor 1 and ask a few students (or groups) to report which elements they decided are relevant in this case and why. Do the same for Factor 2.
- Tell students that they will work on fair use Factors 3 and 4 next time.
- Ask students to make sure their names or group numbers are on their completed Handout 12A-1.
- Collect the handouts for use in Activity 12B.
Possible Script
The fair use exception found in U.S. copyright law allows people under certain conditions to use copyrighted materials without the permission of the copyright owner. Luckily, the fair use exception may apply to you as a student when you create multimedia projects such as presentations, posters, videos, and so on. For those kinds of assignments, you might decide to use images, videos, and other media available online, much of which is copyrighted.
If what you do is considered under fair use, you must still cite your source, yet you do not need to get permission to use the copyrighted material for your assignments as a student.
But every time you want to use copyrighted material, you will need to analyze whether fair use applies to your specific project and use. That way, you can have confidence in your right to build upon others’ works.
So being able to do a fair use analysis will be helpful to you. This activity will get you started doing that kind of analysis.
Determining fair use has no hard and fast rules. Rather, it depends on weighing four factors of the use and is determined on a case-by-case basis. Still, you can analyze your use according to the four factors to get an idea of whether or not it favors a fair use.
The four factors of fair use are:
- Purpose–The purpose and character of the use.
- Nature–The nature of your use.
- Amount–The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- Effect–The effect the use will have on the market for the original work.
In each case, the weight of each of these factors will depend on the individual facts and circumstances surrounding the use of a copyrighted work. No one factor alone will determine the case.
In this activity, the fair use factors are listed for you. But it will be up to you to decide whether the facts about each factor apply to your case in a way that argues for a judgement of fair use or in a way that argues against a judgment of fair use. Do only the first 2 factors today.
Fair Use is a complex topic, so don’t worry if you struggle to do this. Just do your best.
Relevant Choosing & Using Sources Chapters:
Chapter 12, Fair Use.
Credit: Marley Nelson and Maria Scheid of the Copyright Resources Center at the Ohio State University Libraries contributed to this activity.
