A Lesson in Licensing: Understanding Fair Use
By definition, fair use is “a doctrine in the law of the United States that permits limited use of copyright material without having to first acquire permission from the copyright holder.” This allows certain material to be quoted verbatim for specific purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the rightsholder. Essentially, if the use of material is deemed fair use, there is little to no risk of copyright infringement.
So, what does this have to do with publishing an academic textbook?
While writing a textbook manuscript, you may want to quote a phrase or a short passage from a scholarly, scientific, or technical work to underscore a key concept in one of your chapters or support the overarching theme or argument of your work—but it’s not a large enough passage to warrant obtaining permissions (for example, a single line from a song or poem). Or perhaps you wish to analyze a particular image—an advertisement from the 1950s, for example—again, to help readers better understand an important idea within a chapter or to provide direct criticism.
This is where the concept of fair use can come into play. The doctrine of fair use can allow academic authors to include copyrighted materials within their works without requiring permission or payment, which can streamline the production process and potentially keep costs lower. However, what does and does not qualify as fair use can be somewhat nebulous, so there are general guidelines to follow.
First and foremost, your use of copyrighted material must be transformative to qualify as fair use. This means you should use the copyrighted material to create a new viewpoint, perspective, argument, criticism, interpretation, etc., rather than simply copying and pasting another’s work. Ultimately, you should expand upon the material, and your intent should be to present something new to your readers.
Additionally, the use of copyrighted work should be very limited. A single line from a poem could qualify as fair use, but a full stanza likely would not. A single chart from a study could be deemed fair use, but three from the same study might not. Much of this determination is circumstantial and can depend upon the length of the original work and how much is being used within an academic manuscript. Additionally, the perceived importance of the work can come into play. For example, if you’d like to use a single paragraph from a scholarly study, but it is the absolute crux of the study—the statements with the greatest weight—it might not be considered fair use.
Finally, for academic works, data and statistics always qualify as fair use. The inclusion of this type of information within your manuscript is always allowed and should be included if you are using the data to support a larger scholarly argument.
Often, academic publishers will have their own guidelines and rules surrounding fair use, which vary from publisher to publisher. If you are working with a publisher, be sure to check in with your publishing team with any questions you have surrounding fair use, citing third-party material within your manuscript, obtaining permissions, or any other matters related to licensing third-party content that you’d like to include within your text.