Fair Use
The Fair Use Doctrine, Section 107 of the Copyright Act of 1976 is the most general of the limitations on the rights of copyright owners. It attempts to balance the needs of teachers and researchers with those of copyright owners. The fair use doctrine allows for certain uses of copyrighted works, without permission or payment, for purposes such as criticism, comment, news reporting, teaching (including, in some instances, multiple copies for classroom use), scholarship, or research. See “Conditions of Use,” for teaching and classroom exemptions.
Also note that the fair use doctrine is medium neutral and therefore applies equally to films, audio recordings, web content, etc. Some specific exemptions apply with regard to the use of multimedia in the classroom; see Multimedia Use.
The Four Factors of Fair Use
Fair use is a "rule of reason," and because there is no universally adopted definition of fair use, the interpretation of how much use constitutes fair use is a matter of much debate. Congress provides four factors to consider in determining whether a particular instance might be considered fair use. The four factors for consideration are:
- the purpose and character of the use (e.g., commercial vs. nonprofit educational);
- the nature of the copyrighted work (e.g., workbook exercises vs. works of imagination);
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect of the use upon the market for or value of the copyrighted work.
The dynamics of the fair use doctrine involve weighing the various and often competing interests. Although fair use is inherently ambiguous, this should not deter you from making use of it. In fact, the ambiguity can work to your advantage, if you perform a good faith fair use analysis. We recommend using the Fair Use Checklist to assist you with the analysis and that you save a completed copy of the Checklist for your records.
Broad Requirements for Using Copyrighted Materials
Even if your use of copyrighted materials is "fair use," you should always:
- Avoid term-to-term use. You have some leeway if you use materials in a classroom setting for only one semester. However, if you intend to continue to use a work, you should obtain permission.
- Include a copyright notice. Whenever you reproduce (photocopy, scan, etc.) copyrighted work, whatever the length and whether you have advance permission or not, you should include a notice of copyright on the copy in a prominent location.
- Restrict the distribution of copies. For printed works, do not make more than one copy per student; do not charge the students more than the cost of reproduction; and do not collect the copies back from the students at the end of the course (the copies become the student's property). Violation of any of these rules markedly decreases the protection of the fair use doctrine. For electronic works, see the TEACH Act guidelines on providing access only in connection with a class session and on imposing reasonable downstream controls.
- Avoid "anthologizing." Anthologizing is the creation of an ad hoc, textbook-like compilation of chapters, monographs and the like from existing sources, in or out of print. If you wish to anthologize, obtain permission from each author whose work you include. (One helpful source for permissions is the Georgetown University Bookstore, which operates a competitively priced course-packet program for faculty members.)
- Maintain a record. Keep copies of all permission requests and responses to prove that you have made a good faith effort to adhere to the law.
Resources
Agreement on Guidelines for Classroom Copying in Not-For- Profit Educational Institutions With Respect To Books And Periodicals, National Association of College Stores, Inc. (Please note that these are guidelines and cannot be used as the sole justification for a specific use. You must still perform a fair use analysis.)
Fair Use of Copyrighted Materials, University of Texas System.
Content adapted from, “Using Copyrighted Resources,” Georgetown University. Used by permission.
