Fair Use
Fair Use allows for the use of material for educational purposes without copyright permissions under certain conditions. Fair Use carves out a right for persons to make use of material despite the constraints of copyright. You do not need permission for Fair Use; neither can the terms of Copyright impact your application of Fair Use. Fair Use is a matrix of legal principles that builds your case for using material despite laws to the contrary. Fair Use is not black and white; it’s gray, and that’s on purpose. Fair Use is a toolset for you to build your argument, not a formula by which Fair Use is objectively defined.
When deciding whether your intended use of a source is considered Fair Use, consult these guidelines:
What is the purpose of Use?
If it's for educational purposes, it’s more likely to be Fair Use than if it’s for entertainment. That is good for our Use-case, in general, but there are important considerations. The material must have been obtained legally, as it’s not only your Use you must consider. If a textbook is illegally hosted online, and you copy portions of that textbook, even if you adhere to the broader constraints of Fair Use, your use is no longer fair use. In short: Get legal access to the material.
Also: Your Use is defined in part by your control over the material. If we say we are providing the material only to students for educational purposes, we can’t host the material publicly; it must be protected. It may also be pertinent that only the students in that class can access the material. Only provide access to the material to those who absolutely need it.
What is the nature of the material?
The more creative the work, the harder it is to substantiate Fair Use. Consider basic algebra: there may be many textbooks that cover basic algebra, but they are all likely to resemble one another. Compare that to the Fundamentals of Poetry, for which textbooks may be vastly different from one another.
Creative work is still open to Fair Use, but it becomes harder to substantiate Fair Use solely on the amount of material. Some sections are more important to a piece of art than others, for instance - such as the eyes and face of the sitter in a portrait relative to the background. 10% of the Mona Lisa can be the sitter’s face, or the murky sky in the background. One is more valuable than the other, and this is reflective of that fact.
With that in mind, as yourself: Are you using the “heart” of the material? Maybe you should ask someone else for their opinion, if you aren’t sure.
Generally in STEM education, “Creativity” is a measure of the personal contribution of scientists and authors in the creation of the media that you are obtaining for the purposes of Fair Use. It is always important to attribute them, regardless. Fair Use is not an act of piracy by which we are obviated of wrong for not giving credit where it is due. It’s a means by which educators can move agilely in rapidly evolving fields by legally shortcutting the complexities of access to good content.
How much are you using?
Using an excerpt rather than a work in its entirety is more likely to be Fair Use. The rule of thumb is 10%, but that’s not a precise threshold. You can use more, but you probably shouldn’t. It is, first of all, good to pay rights-holders for the work that they have the rights to profit from. Less is better, and if you want to use more: Just have students buy the book. It sounds like it might be worth it.
The impact of the Use upon the rights-holders’ market?
So long as the material is only available to those students in the class, this factor is generally not an issue. However, it’s important to ask: Would students have to purchase access to this material if we weren’t providing it under the umbrella of Fair Use? Going back to basic algebra as an example: If students weren’t using pieces of textbook A, they could easily get the same material from textbooks B, C, D and so on, as well as from Khan Academy, Wikipedia, and more. The more options there are for students to get the information that you wish to provide, the less of an argument the rights-holder has that you are impinging upon their profits by using pieces of their content. Conversely, in more niche subjects, there is a real argument on the side of the rights-holder that their resource is really the resource, in which case it is easy to measure how you providing pieces of that resource to students impacts their bottom line.
So ask yourself: If you had to, could you use a different resource than the one you want to take from for the purposes of Fair Use? Paradoxically, if the answer is no, Fair Use may be harder to substantiate.
Fair Use may still apply if you break one or more of the guidelines above. That’s why they’re guidelines and not rules. But apart from the legal framework, there is also an ethical dimension to consider - one that the guidelines are also very useful for fleshing out. Should students pay for ____ resource? Ask yourself that after considering each of the guidelines individually.