If you've worked as an instructional designer for any length of time, you've likely heard a SME cry "Fair use!" while justifying use of copyrighted material without permission. "Fair use" refers to a doctrine within copyright law that permits certain uses of copyrighted works for some purposes without permission. It's important to have a reasoned, unambiguous response ready if (or when!) your SME claims fair use in their collaborative work with Orbis in order to ethically guide and inform their course development.
This term refers to language within the Copyright Act that provides some limitations on the rights of copyright holders.
17 U.S. Code §107 - Limitations on exclusive rights: Fair use
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Four aspects are considered when a fair use claim is called into question:
A quick scan of the wording in Section 107 would lead most people to conclude that teaching benefits a lot from the fair use doctrine ("including multiple copies for classroom use...nonprofit educational purposes...not an infringement of copyright"), as it does. The fair use doctrine is an important caveat in copyright that enables educators to promptly pull in copyrighted material that supports student learning without the roadblocks and delays of seeking permission from the copyright holder. The rigidity of copyright is mitigated by this allowance that acknowledges not every unauthorized use of copyrighted material detracts from its value.
A common example of this would be a teacher who prints copies of a news article and passes it out in class to support that day's group discussion. Another example might be an in-person lecture that uses a brief, inconsequential movie clip to illustrate a point. Both of these scenarios would likely be deemed fair use if called into question.
Fair use is a vital allowance to mitigate the practical implications of copyright law and allows these very necessary and beneficial societal exchanges of information (i.e., commentary, research, teaching, etc.). The result of the fair use doctrine is decades of individual judicial decisions to ascertain on a case-by-case basis whether a use constitutes copyright infringement or is permissible via fair use. The issue is summarized in a House Report: "Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts" (H.R. Rep. No. 94–1476, 1976).
The U.S. Copyright Office maintains a searchable index of court opinions on fair use cases demonstrating the complexity and ambiguity around their legitimacy until clarified by judicial decision. This is a potentially expensive and stressful situation, regardless of the outcome. While weighing the potential benefits versus risks in using that copyrighted material under the defense of fair use, it's important to keep this in mind.
While our nonprofit partners may benefit from fair use in their on-ground operations, our involvement as a commercial enterprise precludes a reasonable expectation of fair use. In addition, the act of storing copyrighted materials in a learning management system and potentially duplicating the material for other course sections, semesters, etc. presents an even less favorable claim for fair use. The unified message our partners should hear is we cannot reasonably nor ethically guide the use of copyrighted material in course content without permission, including under a fair use claim. While faculty ultimately make their own decisions and we cannot force them to comply, you can clearly state that fair use can't be applied to any of our collaborative work and we encourage all of our partners to uphold copyright law.