One of the most common things I hear when talking to people, especially faculty, about Fair Use is “But this is an instructional use, so it’s ok, right?”
Instructional or Educational Use is not a uniquely determinative thing in copyright. It just isn’t. It would be so educationally useful to post all those PDFs to a website so that people without library access could read them, but being educational isn’t the only litmus test. I really really wish it were because I’m pretty much in favor of opening up information as much as we can to as many people as we can, but Fair Use isn’t about re-publishing stuff, it’s about making use of stuff.
Now, in-classroom use, THAT is a thing in copyright that doesn’t get enough air time. Section 107, the Fair Use section says that reproductions “including multiple copies for classroom use” may be just fine, depending on those famous Four Factors. Reproduction for research purposes: probably fine (but do that Four Factor test as always). Reproduction that is necessary for comment and criticism: same deal. Reproduction that is “instructional” or “educational” though, is just too broad a brush. Almost everything is educational in some way.
That said, don’t be too scared to make excellent uses of the Fair Use provisions of copyright law. If we don’t use them, we will lose them. Market Effect will come inching ever inward if we let it. Arm yourself with those Four Factors and use them as they were intended: to extend conversation and allow for the creation of new knowledge while being fair to the rights holder.
[Updates for additional clarity on my mini-rant:
- Classroom use is not the ONLY venue for educational Fair Use. It is simply one spelled out use that we on college campus can take advantage of.
- Republication can be Fair Use, but it isn’t necessarily Fair Use just because we are educators. The Four Factors are still the important points to weight.]