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VCCS Copyright Guide: Fair Use

Thanks to Piedmont Community College for allowing the use of their libguide as the foundation for this libguide.

Understanding Fair Use

https://upload.wikimedia.org/wikipedia/commons/thumb/7/78/Fair_use_logo.svg/128px-Fair_use_logo.svg.pngFair use, as outlined in Section 107 of the U.S. Copyright Law, is an important exemption that limits the rights of copyright holders. It allows persons to utilize copyrighted works without seeking permission or paying a fee. For example, under fair use, you may make copies for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research" and not infringe on copyright.

Unfortunately, fair use is not a precise, clear-cut rule. As teaching faculty, it is your responsibility to evaluate each use against the four factors outlined in Section 107:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • the nature of the copyrighted work
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • the effect of the use upon the potential market for or value of the copyrighted work

All factors do not have to favor a fair use, and no one factor outweighs the others. There are many tools available to faculty to assist in making a fair use determination, including:

Educational Fair Use Guidelines

The Educational Fair Use Guidelines provide greater clarity to faculty on what would be considered a fair use. The guidelines are not law, but an agreement between publishers and academia on the amount of copyrighted material that can be used for teaching. Two major assumptions are that the materials are used for education and not entertainment, and that the materials were obtained legally. The following are "minimum standards," however, as some uses over and above these guidelines could still be considered fair use.

Multiple copies for student learning use

Multiple copies (not to exceed more than one copy per student in a course) may be made by or for the teacher giving the course for student learning use or discussion, provided that the following criteria are met:

  • The copying meets the tests of brevity and spontaneity (as defined below).
  • The copying meets the cumulative effect test (as defined below).
  • Each copy includes a notice of copyright. An example is "this material may be protected by Copyright law (title 17, US Code)."
  • The copied material is not used in place of a textbook or workbook.
  • Only one work by the same author, or no more than three works from a collected work, may be copied during a single class term.

Definitions:

Brevity: Either a complete article, story or essay of less than 2,500 words, (usually varies 3-8 pages depending on size of page and type) or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is greater.

Spontaneity: The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work. The moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative effect: Copying of the material is for only one course in the school in which the copies are made.

Common Fair Use Scenarios

Classroom Copying

SCENARIO 1: A professor copies one article from a periodical for distribution to the class.

FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use, as long as the use is for only one semester, and is not used as a replacement for a textbook.

Posting Copyrighted Article to Web Page

SCENARIO 2: A professor has posted his class notes on a Web page available to the public. He wants to scan an article from a copyrighted journal and add it to his Web page.

FAIR USE? No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the Web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the Web page is restricted, then this is a fair use. Permission should be sought if used for more than one semester, however.

Coursepacks

SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.

FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class.

Textbooks

SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.

FAIR USE? No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.

SCENARIO 5: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.

FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place a copy of the textbook, not the copies, on reserve.

Public Domain Materials

SCENARIO 6: A teacher copies a Shakespearian play from a copyrighted anthology.

FAIR USE?  Yes. The play is in the public domain and not subject to copyright protection. The only portions of the anthology that are copyrighted are notes and introduction.

Journal Article for Personal Use

SCENARIO 7: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.

Out-of-Print-Book

SCENARIO 8: A library has a book that is out-of-print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.

FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out-of-print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.

SCENARIO 9: Using the same facts as explained in SCENARIO 8 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?

FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book.

Showing a DVD for Classroom Instruction

SCENARIO 10: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.

FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees. A movie should not be shown for entertainment purposes, however.

Copying a DVD for Classroom Instruction

SCENARIO 11: A teacher makes a copy of the DVD described in SCENARIO 10 for a colleague to show in her class at the same time.

FAIR USE? No. The teacher may lend her personal copy of the DVD to a colleague for this purpose.

Renting a DVD That Is in the Public Domain for Non-classroom Use

SCENARIO 12: A professor wishes to raise funds for a scholarship. She rents a DVD of a motion picture on which the copyright has expired and charges admission fees.

FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain.

Renting a DVD That Is Copyright-Protected for Non-classroom Use

SCENARIO 13: The facts are the same as those in SCENARIO 12 except that the movie is protected by copyright.

FAIR USE? No, because it infringes the copyright owner's right to market the work.

Classroom Presentation

SCENARIO 14: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.

FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.

Electronic Transmission or Broadcast of Classroom Presentation

What if the presentation incorporating the photographs discussed in SCENARIO 14 is broadcast to a distant classroom?

FAIR USE?  Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.

Broadcast of Classroom Presentation to Home or Office

What if the presentation discussed in SCENARIO 14 is broadcast to students at their homes or offices?

FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship or research.

Videotaping of Classroom Presentation

What if the teacher's or student's presentation explained in SCENARIO 14 is videotaped and placed on Panopto?

FAIR USE?  Yes. This use would be considered fair use, if the videotape is used for educational purposes such as student review or if the videotape is for instruction.

Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 14 presentation incorporating the photographs is videotaped and rebroadcast? Is this a fair use?

FAIR USE?  Yes. The use of the photographs is fair use as long as the presentation is videotaped and rebroadcast only for instruction.

Incorporation of Photographs in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 14 presentation is included in an electronic presentation such as Microsoft's PowerPoint?

FAIR USE?  Yes. This should be considered fair use as long as the electronic presentation is for educational or instructional use.

Making Changes to Photographs

What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 14?

FAIR USE?  Yes. This would be considered fair use for education, comment, criticism or parody. One must inform the audience that changes were made to the photographer's copyrighted work.

Use of Copyrighted Music

SCENARIO 15: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation. Can the music be included in the teacher's or student's initial presentation?

FAIR USE? Yes. This is fair use if instruction is occurring.

Use of Music Over Two-Way Interactive Video (GSAMS)

Same facts as SCENARIO 15. The presentation is broadcast to a distant classroom using two-way interactive video (GSAMS).

FAIR USE? Yes. The use of interactive video for educational instruction is considered a fair use.

Use of Music in Videotaped Classroom Presentation

What if the teacher's or student's presentation described in SCENARIO 15 is videotaped?

FAIR USE?  Yes. This is fair use if instruction is occurring.

Use of Music in Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 15 presentation is videotaped and rebroadcast?

FAIR USE?  The answer is not clear. If instruction is occurring and there are no admission charges to the rebroadcast, the presumption is that it may be fair use. Tuition and course fees do not constitute admission fees.

Use of Music in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 15 presentation is included in an electronic presentation (excluding the Internet)?

FAIR USE?  Yes. This is fair use if instruction is occurring.

Use of Music as Content in a Classroom Presentation

SCENARIO 16: A professor teaches an opera course, and the professor creates a presentation. The presentation contains portions of the works of ten contemporary artists.

FAIR USE? Yes, as long as the use of the presentation is for instruction.

Videotape of Telecourse

SCENARIO 17: Institution A creates a telecourse. The course contains copyrighted text, video, audio and photographs relevant to the class. If Institution A did not obtain permission to use the copyrighted materials, can Institution A show the videotape of the telecourse to students who have signed up for a telecourse at Institution A?

FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.

Videotape of Telecourse Shown at Other Institutions

Assume same facts as in SCENARIO 17. If Institution A did not obtain permission to use the copyrighted materials, can students at Institution B enroll and receive credit for the course at Institution B?

FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.

Telecourse via the Internet

Assume same facts as in SCENARIO 17. What if the telecourse is transmitted via the Internet?

FAIR USE? If the telecourse is broadcast and there is open access, the audience is no longer clearly defined. A rebroadcast over the Internet to a global audience is probably not a fair use. A restricted broadcast of the telecourse is a fair use.

Student Project for Distribution on the Internet

SCENARIO 18: A student is taking a distance learning class in which the instructor has required that a particular assignment be created for unlimited distribution on the Web. A student includes an audio segment of copyrighted music (video, news broadcast, non-dramatic literary work).

FAIR USE? No. Since the teacher specifically stated that the project is being created for distribution over the Web, this is not a fair use of any of the listed copyrighted materials and permission should be obtained.

Student Project on the Internet with Restricted Access

Same facts as SCENARIO 18, however, access to each student's Web page will be restricted to other students in the class.

FAIR USE? Yes.

Use of Commercial Videotape

SCENARIO 19: An instructor is teaching a class delivered on cable television or via two-way interactive video (GSAMS), and she uses a commercial videotape (either in its entirely or a portion), which is sold for instructional purposes, during a class to illustrate a concept covered in the discussion.

FAIR USE? Yes. She is using a commercial video for its intended purpose. Moreover, it is being used to illustrate a concept connected with the class discussion.

Same facts as SCENARIO 19, but the class is distributed over the Internet.

FAIR USE? This is a fair use only if access over the Internet is restricted.

Same facts as SCENARIO 19, but the videotape is not "educational" in orientation.

FAIR USE? Distribution over two-way interactive video or cable television controlled by the institution would be fair use, as would restricted distribution over the Internet. Unrestricted distribution over the Internet is not a fair use.

Taping On-Air Programming

SCENARIO 20: A faculty member records a segment from a television program. The segment will be shown in a GSAMS class the following day. The remote sites will record the class in the event of technical difficulties.

FAIR USE? Yes.

Retention of Tape of On-Air Programming

Assume there are technical difficulties in SCENARIO 20 and the remote sites replay the tape containing the program segment

FAIR USE? Yes. The use is for instructional purposes.

Retention of Videotape of Copyrighted Material

SCENARIO 21: Institution E records a two-way interactive video (GSAMS) class that contains copyrighted works. The tapes are kept for the entire semester to serve as review for students who may have missed a class or as backup in the event of technical difficulties. At the end of the term, the tapes are erased.

FAIR USE? Yes.

Use of a Videotape of a GSAMS Class Containing Copyrighted Material

What if the professor who conducted the class in SCENARIO 21 decides to show the tape to her continuing education class (or to a community group)?

FAIR USE? Yes, showing the tapes to her continuing education class is fair use if she is using the material for educational purposes and no admission fee is charged. Showing the tape to a community group may or may not be a fair use. The fact that the user of the tapes is a professor does not make the showing of the tape to a community group an educational use. One would need to conduct a fair use analysis.

Rebroadcast of a Videotape of a Two-Way Interactive Video (GSAMS) Class Containing Copyrighted Material

SCENARIO 23: Institution E records a two-way interactive video class that contains copyrighted text, video, audio and photographs that are relevant to the class. Institution E rebroadcasts the videotape to a class at Institution F.

FAIR USE?  Yes. It is fair use since instruction is occurring.

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