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 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.
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.
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.
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.
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.
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.
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).
Materials Purchased for Institutional Use
Public Domain
Open Access
Creative Commons
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.