Copyright laws project the "intellectual property" of creators. Fair use is the concept of limited use of a copyrighted work for commentary, criticism, or parody. Often the types of uses students and instructors use copyrighted materials for educational purposes is fair use, but there are limits.

Explanation of Copyright, Public Domain, and Fair Use

As defined by the Library of Congress:

Copyright refers to the author's (creators of all sorts such as writers, photographers, artists, film producers, composers, and programmers) exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display their works. These rights may be transferred or assigned in whole or in part in writing by the author.

Public Domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

Fair use is an exception to the exclusive protection of copyright under American law. It permits certain limited uses without permission from the author or owner. Depending on the circumstances, copying may be considered "fair" for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.

How to Determine if You Can Use Primary Source Material

When working on a research paper, project or presentation you may find material, whether in an archive or online, that you want to include. But whether it is ok to do so must be determined on a case-by-case basis. There is no standard answer to this question. You will need to investigate a little further by answering the following questions:

• Who is the author/creator of the item? Is it a person? Is it an institution? Is this information known?
• When was it created? Is there a date associated with the item?
• Was it ever published? This can be hard to determine sometimes, but consider if the material was meant for a wide audience? Was it publicly distributed? Was it a private conversation between two parties?
• How are you planning to use it? Are you including it to support an argument, to make comment or criticism, or to add context to your research? Are you including it because it looks cool and you really like the image?
• Where will it be available after you’ve submitted it? Will your paper or project be widely available online or only submitted via Canvas? Is it going to be published online or in print at a later juncture?

Basic Copyright Investigation Steps

Step 1: Determine the status. To help you determine if the item is protected under Copyright or is it in the Public Domain use this Copyright Term and The Public Domain chart created by Peter Hirtle at Cornell University

Step 2: Explore exemptions to Copyright Law that might allow you to use the material. Exemptions to Copyright Law allow for materials to be used in ways that do not infringe on Copyright. The Fair Use Doctrine is just such an exemption and if often used by students and teachers for educational purposes.

Step 3: Ask permission. If it is still covered under Copyright, you need to ask permission to use it.

Tips

• Document your investigation
  • It is a good idea to keep track of everything you did in good faith to determine the copyright status, ask permission, or invoke an exemption.
  • If you used the Fair Use checklist, store that with your research.
• Avoid making items available on the World Wide Web
  • Generally speaking, making the materials available on the World Wide Web does not fall under Fair Use. If you plan to make your work available online, it might be a better idea to link to the item you found online than to download it and include it in your own work. Make it clear that it links to an external site and be sure to give credit to them.
• Special considerations for Primary Sources
  • When conducting your copyright investigation for primary sources, it can be difficult to determine and author, date of creation, or if it was published,. Always try to ask a librarian or archivist from that institution to help.
  • Primary sources are often, but not always, unpublished materials. It is best to avoid making these available on the World Wide Web as this would be considered publishing, which is an exclusive right of the creator and copyright holder.