A few years ago I busted a student for plagiarism, a not unusual occurrence. But this time the student gave me a unique and completely incorrect defense in response. He argued that even though he had used the work of another author word for word and did not cite the source, he did not plagiarize because the material was covered by “fair use” rules. What he failed to realize was that all work that isn’t a student’s original work, but is included in academic papers or projects, must be cited — regardless of what the copyright or publications permissions of the source are. It was a costly lesson: he earned a failing grade on the paper.
My student’s complete misunderstanding of what “fair use” meant opened my eyes to the fact that today’s students confront an enormous amount of information about how and what to cite in their research, information that has been made more complicated by the constant references on the internet to “Creative Commons” and “Fair Use” doctrines.
Why Do Students Need to Know About This?
The advent of the internet means that students now have fingertip access to millions of different kinds of source information. As a result, students and even faculty have been unsure about how to use this information. While students can be charged with plagiarism, and fail a course or get expelled from school for such offenses, an even more serious possibility is legal trouble for using sources without citation or authorization. It is very common, for example, for students to cut and paste images, text, and other online sources into their assignment submissions without crediting the creator. What students don’t realize is that this is not only an academic error that can result in a failing grade, it can also be illegal.
Most legal cases about unauthorized uses of sources involve the music industry and illegal downloading, or over content created by famous artists and used without authorization by other famous people, like the band Survivor’s current lawsuit against Republican presidential candidate Newt Gingrich for using their song “Eye of the Tiger” at his public events. But it would not be surprising for students to become the targets of such lawsuits. After all, students across the country have been sued for downloading music inappropriately. It is entirely possible that students who use music in their presentations could be sued for copyright violation if they don’t get permission or pay for the right to use the music if it is under copyright.
What is Fair Use?
Fair Use is a limitation on the exclusive rights of an owner of copyright to the material. As explained by the U.S. Copyright Office, some material can be reproduced without violating copyright, if it is used for teaching, academic scholarship and research, news reporting, commentary or criticism. Such use is permissible because one of the factors considered in determining what kind of use is “fair” is that “the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.” It is also fair use if the work is substantially changed or altered, either to appeal to a different audience for different purposes (i.e., satire, homage, etc.) You can get a sense of how Fair Use works by examining the examples provided by the American University Center for Social Media.
What is Creative Commons?
Creative Commons is an organization that allows artists, writer, photographer, or any other content generator, some control over who uses their work. According to the website, “Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation…The infrastructure we provide consists of a set of copyright licenses and tools that create a balance inside the traditional ‘all rights reserved’ setting that copyright law creates.”
This means that individual content-producers as well as large corporations can maintain their copyright control over their work but still allow the work to be used in limited ways. Creative Commons calls it a “‘some rights reserved’ approach to copyright.” Students and educators can therefore use materials through Creative Commons that might not have been available in the past, because the creators have worked with Creative Commons to establish guidelines and procedures for the use of their content. Creative Commons provides plenty of examples of proper usage on their website.
What Does All This Mean for Students?
Many students, and indeed some faculty, think that using Fair Use or Creative Commons material means that they are ‘covered’ and do not have to worry about plagiarism. This is completely false. No matter what kind of material you use, or how you use it, you must always cite it! That means citing who created it, when it was published, where you got it, and every other standard citation requirement. The work, or content on which your work is based, was not created by you, so you must provide proper credit to the original creator even if the work is openly available. Academic regulations are distinct from copyright law, and will still be employed even if your use of the material is legal. The rule of thumb about academic work still stands: If it isn’t your original work, you must cite it.
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