Fair Use and Education: The Way Forward

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism," for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where the amount of content used is appropriate to the transformative purpose. Over twenty years, we have accumulated considerable information about what constitutes "transformativeness," and members of the education community are well positioned to provide persuasive narratives explaining how educational uses significantly repurpose and add value to the copyrighted content they incorporate.