What is Fair Use?
Fair use is the right given in U.S. copyright law to use copyrighted material without payment or permission, under some circumstances. A long pattern of judicial decisions applying Supreme Court precedent shows that an assessment of fair use typically depends on the answers to two questions:
- Is the use transformative—is the purpose for which preexisting copyrighted material is reused different from that for which it was originally created?
- Is the amount of material used appropriate to the purpose of the new use?
If so, it is likely that fair use applies. Our Codes of Best Practices describe ways in which fair use principles can be used in common recurring contexts.
Code of Best Practices in Fair Use for Open Educational Resources
The OER movement represents a bold and important experiment that faces many challenges. It is inevitable and appropriate that the members of OER community should feel protective of their individual projects and the movement in general, and that this protectiveness may sometimes take the form of risk aversion where “difficult” issues like copyright are concerned. And, of course, there may sometimes be good prudential reasons for OER makers to forgo exercising their fair use rights. But before weighing the benefits of risk avoidance against the costs – which include shortchanging the core mission of making the best possible OER available to the widest possible range of learners – it is important to know what those rights are!
Documentary Filmmakers’ Statement of Best Practices in Fair Use
This statement recognizes that documentary filmmakers must choose whether or not to rely on fair use when their projects involve the use of copyrighted material. It is organized around four classes of situations that they confront regularly in practice. (These four classes do not exhaust all the likely situations where fair use might apply; they reflect the most common kinds of situations that documentarians identified at this point.) In each case, a general principle about the applicability of fair use is asserted, followed by qualifications that may affect individual cases.