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Copyright & Fair Use Guide: Fair Use and Copyright in the Classroom

Standard Disclaimer

The materials and information presented here do not constitute legal advice and are presented for informational purposes only. For legal guidance, please consult with a licensed attorney. 

Fair Use

Fair use is an exception and a privilege. It is not a right. Fair use is also not automatic protection against litigation. Certain quantities and percentages exist as guidelines to determine whether something is allowable under fair use, but there is no exact quantity or percentage of a work that will automatically qualify its use as fair use. Fair use is always a judgment call and it is dependent on multiple factors. The person responsible for sharing the work is the person responsible for the legal violation. In cases where an individual is employed by an institution, the institution is also usually implicated in the case.  

Just because something is used for educational purposes does not mean that it meets the criteria for fair use. Individuals and universities can and have been sued for cases in which they believed they were compliant with fair use guidelines. 

In order for work to be shared under the fair use exception, the use must comply with four factors that take into account the nature and amount of the work being used and how that work will be used. Below is information on these factors, some resources to assist you in determining whether the fair use exception may be applied to your specific case, and additional information on fair use and copyright. 

TEACH Act

The TEACH Act enables the use of copyrighted materials for distance education under very specific circumstances. The resources below will help you to determine if it is applicable to your case. 

Fair Use Checklist

BENEFITS OF USING THE CHECKLIST

A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

THE CHECKLIST AS A ROAD MAP

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

CAVEAT

This checklist is provided as a tool to assist you when undertaking a fair use analysis.  The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair.  Each factor should be given careful consideration in analyzing any specific use.  There is no magic formula; an arithmetic approach to the application of the four factors should not be used.  Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.

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The above introduction and the checklist below are attributed to Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) and copied to this page under the Creative Commons Attribution License. 

Account for all FOUR factors when assessing your intended use with the criteria below. Consider carefully whether these materials will be reused in a syllabus and other stipulations noted above that may oppose fair use. 

First Factor: Purpose of Use

Favoring Fair Use

Teaching (including multiple copies for classroom use)

Research

Scholarship

Use by nonprofit educational institution

Criticism

Comment

News reporting

Transformative or productive use (changes the work for a new use)

Restricted access (password protected
access for students or other restricted group)

Parody

Opposing Fair Use

Commercial activity

Profiting or charging for the use

Entertainment

Facts that show you were acting in bad faith or with knowledge of possible wrongdoing

Not giving attribution to the original author

Use creates a derivative work of the original (full translation, adaptation, abridged version, etc.)

 

Second Factor: Nature of Copyrighted Work

Favoring Fair Use

Published work

Factual work

Important to favored educational objectives

Opposing Fair Use

Unpublished work

Creative work (art, music, poetry, novels, films, plays)

Fiction

Consumable work (intended to be used only once, e.g., a workbook)

Work created expressly for the purpose of the proposed use (e.g., case studies)

 

Third Factor: Amount of Work

Favoring Fair Use

Small quantity of the work used

Portion used is not central or significant to the whole work

Amount is appropriate for favored educational objectives

Opposing Fair Use

Large portion of the work used

Portion used is central to the entire work, or the “heart” of the work

 

Fourth Factor: Effect of Your Use

Favoring Fair Use

Users owns lawfully acquired or purchased copy of the original work

Number of copies made (or number of users to whom made accessible) is one or few

No significant effect on the market or potential market for copyrighted work

No similar product is marketed by the copyright holder

Lack of licensing or permission mechanism

The copyright holder cannot be identified or cannot be found after a reasonable search (or does not respond to requests for permission)

Opposing Fair Use

Use could replace a sale of copyrighted work

Use would significantly impair the market or potential market for the copyrighted work

Reasonably available licensing mechanism exists for the copyrighted work

Reasonable available and affordable permission is available for using the work

You make the work accessible on the Web or in another public forum

Repeated or long term use
 

 

Adapted from The University of Chicago, Copyright Information Center, adapted with permission from the Copyright Advisory Office at Columbia University, Kenneth D. Crews, director (www.copyright.columbia.edu).

Fair Use Evaluation Tools

Lawsuits and Examples

Resources for Classroom Use

Materials Purchased for Institutional Use 

  • Materials made available via Moye Library for institutional use are suitable for classroom use/class use. However, the format of these materials may not be altered to make them available in a different manner or to a larger number of students. (Example of altering format: digitizing a work or a part of a work to post to Moodle) 
  • Films available via streaming video at Moye Library are licensed for public performance, meaning they can be streamed to a noncommercial audience and may be shown in class. 
  • Material accessed via individual subscriptions (to professional associations, journals, etc.) should only be available to the individual who purchased the subscription. Making these materials available to students and classes is a direct violation of federal copyright law and threatens litigation of the individual and/or university. 
  • Similarly, single-use licenses for software, tools, and materials are intended for single use by an individual purchaser and should not be shared. 

Public Domain

  • Materials are classified as in the public domain if they were published before 1924.

Open Access

  • Open access materials (sometimes referred to as Open Educational Resources) are freely available for use and reuse. Some are labeled with a Creative Commons license that specifies the terms of use and/or reuse. (See below.) 

Creative Commons 

  • Materials licensed under Creative Commons may be used, reused, or remixed based on the specific usage and attribution rights specified by their creative commons license. For an explanation of the different licenses and associated logos, see: https://creativecommons.org/.

Providing Access to Materials from Moye Library in your Course

Please consider the following guidelines when providing access to library materials in your course. Not all of our electronic resources are licensed for unlimited use. Materials provided by vendors change periodically. Please take this into account when assigning materials. 

  • Link to the work using the permalink and make sure that it includes the UMO proxy stanza, https://ezproxy.umo.edu/login?url=. If the proxy stanza is NOT included at the beginning of the link, off-campus access will not be available.

    • Below is an example of a proxy-enabled permalink from Films on Demand: 

      • https://ezproxy.umo.edu/login?url=https://fod.infobase.com/PortalPlaylists.aspx?wID=103096&xtid=160903. 

  • Do NOT upload PDFs directly to Moodle. 

  • Do not convert analog materials to a digital format for online courses. Any use of copyrighted materials must be vetted against the TEACH Act and assessed for compliance with Fair Use guidelines. 

  • Document your Fair Use assessments as protection against legal action. The tools in this guide can assist with the documentation. 

  • Include a copyright notice on ANY work that is provided under a Fair Use assessment. The notice should state the following: 

    • The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

      “Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code – Chapter 5.” U.S. Copyright Office, http://www.copyright.gov/title17/92chap5.html. Accessed 19 Dec.2017.