Fair Use: Can I Upload this PDF?
by Open Scholarship Librarian Dylan Mohr and Online Learning Librarian John Stawarz
It’s July and you’re excited that you’ve already started to prepare your fall semester course. You want to upload a recent journal article to your Blackboard site. Since this is for educational purposes, you can simply track down and upload a pdf of the article into Blackboard, right? Maybe.
Even though this article is copyrighted, the legal doctrine of fair use might allow you to share it with your students. Fair use allows for the limited copying or reproduction of copyrighted material for certain contexts or uses without the permission of the copyright holder.
You’ll need to think through a few considerations to weigh the validity of your fair use argument. Fair use is determined by a number of things, and there is no singular right answer to the question. The criteria are the purpose of use, the nature (or type of work) you are using, the amount of the work reproduced, and finally the effect on market value of the work. You will need to evaluate each of these before posting your article on Blackboard.
- Consider the Purpose and Character of the Use
- You consider that you’re using the article for educational purposes, which is typically favored under fair use.
- You note that your use is non-commercial since it’s for a closed Blackboard course.
- You plan to use the article to stimulate critical thinking and discussions among your students, which adds a transformative aspect to the use.
2. Consider the Nature of the Copyrighted Work
- The article is a scholarly work, which tends to favor fair use—that is, it is not a film or a song, which can be trickier.
- Since the article is fact-based and published, it leans more toward fair use than unpublished, fictional works.
3. Consider the Amount and Substantiality of the Portion Used
- You evaluate whether you need to use the entire article or just specific sections.
- You decide that excerpts from the article will be sufficient for your teaching objectives, ensuring that you use only what is necessary.
4. Consider Effect on the Market for the Original
- You consider whether your use of the article could negatively impact the market for the original work.
- You determine that the inclusion of excerpts in a course shell for a limited audience of students is unlikely to substitute for subscriptions to the journal or reduce its sales.
To evaluate the strength of your fair use argument, always keep in mind that you need to apply all four factors. For example, do not jump to a conclusion based simply on whether your use is educational or commercial. You still need to evaluate, apply and balance the nature of the copyrighted work, the amount or substantiality of the portion used and the potential impact of the use on the market or value of the work. Not all factors need to weigh either for or against fair use, but overall, the factors will usually lean one direction or the other. Also, the relative importance of the factors is not always the same. Using this checklist can help you evaluate your use case.
Let’s assume you concluded that you don’t have a strong fair use argument. What can you do? There are some options that would allow you to sidestep fair use considerations entirely. Consider:
- Linking to Library Resources
- You check with your subject librarian if the article is or could be available through the Syracuse University Libraries.
- You find that the article is accessible via the library and decide to provide a link to the students, ensuring they the access material though licensed agreements negotiated by the libraries, rather than you uploading a pdf.
- If the Libraries can’t license the article, you could request this article through interlibrary loan; however, licensing agreements, rather than copyright restrictions, would prohibit you from sharing an ILL-acquired article with your students.
2. Finding an Open Access Material
- You search for similar, open access articles that are available under a Creative Commons License, which allows for use on Blackboard (with proper attribution).
- You might also be able to find an earlier or preprint version of the article on an institutional or other subject-specific repository.
Note: Parts of this article were adapted from Columbia University’s fair use website, which was authored by Dr. Kenneth D. Crews licensed CC-BY.