Copyright & Plagiarism: Public Domain and Fair Use

Public Domain includes all works that are either no longer protected by copyright or never were.

Chances are high that the materials of greatest interest to students and faculty are not in the public domain. In addition, you must also consider other forms of legal protection such as trademark or patent protection before reusing third-party content.

• If a work is publicly available, it does not mean that it is in the public domain.
• All works first published in the United States before 1923 are considered to be in the public domain in the United States.
• All materials created since 1989, except those created by the U.S. federal government, are presumptively protected by copyright.

Public domain materials generally fall into one of four categories:

1. Generic information such as facts, numbers and ideas.
2. Works whose copyrights have lapsed over time or whose copyright holders have failed to renew a registration (a requirement that applies to works created between 1923 and 1978).
3. Works published before March 1989 that failed to include a proper notice of copyright.
4. Works created by the U.S. federal government.

For more information, view the page “When U.S. Works Pass Into the Public Domain“.

The Fair Use Doctrine contains a list of the various purposes for which the reproduction of a particular work may be considered fair (or freely available), such as criticism, comment, news reporting, teaching, scholarship, and research.

It also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

For more information, view the page "Fair Use Doctrine (Section 107)" of the US Copyright law.

There's no one right answer as to what constitutes a "fair use" of a particular copyighted work. The answer varies from situation to situation.

1. PURPOSE & CHARACTER OF THE USE: including whether such use is of a commercial nature or is for nonprofit educational purposes. Fair use is favored if the use is:
   • For "criticism, comment, news reporting, teaching (including multiple print copies for classroom use), scholarship or research."
   • Transformative: it uses the existing work in a new way or for a new purpose than the original work.
   • By a nonprofit educational institution.
   • For a limited audience, limited duration and/or restricted access.
2. NATURE OF THE WORK: Fair use is favored if the work is:
   • Published.
   • Factual or nonfiction; works considered highly creative (i.e. fine art, musical works, drama) do not favor fair use.
   • Not a consumable item (i.e. a workbook or standardized test).
3. AMOUNT OF THE WORK: amount and substantiality of the portion used in relation to the work as a whole. Fair use is favored if:
   • Only the amount required to achieve the stated purpose will be used.
   • Only limited and reasonable portions will be used.
   • The portion used is not the key part or "heart" of the work.
4. MARKET EFFECT: or value of the copyrighted work. Fair use is favored if:
   • The work is not currently commercially available (i.e. out of print).
   • Use of the work will have no significant effect on it's value or potential value.
   • The user owns a legal copy of the original work.
   • One or few copies are made.
   • There is no license for the work that would prohibit the intended use.
   • The copyright holder cannot be identified or found after a reasonable search, or does not respond to requests for permission to use the work.