Copyright and Fair Use: Fair Use

According to Title 17, Section 107 of the Copyright law, concerning the reproduction of copyrighted works by educators and librarians, the following guidelines should be followed:

Single Copying for Teachers
A single copy may be made of any of the following by or for any faculty or staff member at his or her individual request for use in research or for teaching a class:

• A chapter from a book;
• An article from a periodical or newspaper;
• A short story, short essay or short poem, whether or not from a collective work;
• A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the faculty giving the course for classroom use or discussion, provided that:

• The copying meets the following tests of brevity and spontaneity as defined below; and
• Meets the cumulative effect test as defined below; and,
• Each copy includes a notice of copyright

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.

Fair Use for Learning Management Systems
When posting articles that can be found in a library database to a Canvas page, the citation of the article must be posted with the URL link to the article's citation page. You can not post a link to the pdf form of the article. In most databases like EBSCO, JSTOR, etc., each article generally has a permanent URL that can be posted.

Fair Use for Audiovisual (AV) Materials
In-classroom performance of a copyrighted video is permissible under the following conditions:

• The performance must be by instructors (including guest lecturers) or by pupils; and
• The performance is in connection with face-to-face teaching activities; and
• The entire audience is involved in the teaching activity; and
• The entire audience is in the same room or same general area;
• The teaching activities are conducted by a non-profit education institution; and
• The performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop;
• The video is lawfully made; the person responsible had no reason to believe that the video was unlawfully made.

Fair Use for Course Reserves

• Books, articles, etc. that have been borrowed through interlibrary loan may NOT be placed on reserve
• Personal copies of a book MAY be placed on reserve for your students to use

The fair use section of U.S. copyright law lists the following factors to be evaluated in determining whether a particular use of a copyrighted work is a permitted fair use: 

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes — uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes, but not all educational uses are fair use.

• The nature of the copyrighted work — reproducing a factual work is more likely to be fair use than a creative, artistic work such as a musical composition.

• The amount and significance of the portion used in relation to the entire work — reproducing smaller portions of a work is more likely to be fair use than larger portions.

• The effect of the use upon the potential market for or value of the copyrighted work — uses which have no or little market impact on the copyrighted work are more likely to be fair than those that interfere with potential markets.

Fair use is purposefully broad and flexible. It requires a thoughtful analysis of each of the four factors based on specific circumstances. In applying the four fair use factors, each factor is relevant in order to determine whether a particular use is a fair use. A final determination on fair use depends on weighing and balancing all four factors against the facts of an individual situation.

!! Not all uses in an academic context are automatically considered fair use !!

The TEACH Act of 2002 (17 U.S.C. § 110(2)) primarily expanded the copyright exemption for online instruction, including the range of allowable works in distance education settings. It permits the performance or display of complete non-dramatic literary or musical works, such as the reading of a poem or short story, or listening to music other than opera or musicals. Showing films or videos is still restricted to limited portions. The TEACH Act also expanded the permissible locations for accessing distance education beyond classrooms or computer labs.

The following actions are allowed in distance education settings under the TEACH Act:

• Display (showing of a copy) of any work in an amount analogous to what is provided in a physical classroom setting.
• Performance of nondramatic literary works.
• Performance of nondramatic musical works.
• Performance of "reasonable and limited" portions of other types of work (other than nondramatic literary or musical work), EXCEPT digital educational works.
• Distance-education students may receive transmissions at any location.
• Retention of content and distant student access for the length of a “class session.”
• Copying and storage for a limited time or necessary for digital transmission to students.
• Digitization of portions of analog works if no digital version is available or if digital version is not in an accessible form.

The following are NOT allowed in distance education:

• Works that are marketed  as part of online instructional activities (commercially available digital educational materials)
• Unlawful copies of copyrighted works under the U.S. Copyright Law, if the institution “knew or had reason to believe” that they were not lawfully made and acquired.

Duties and requirements for instructors

There are numerous conditions and requirements for complying with the terms of the TEACH Act. Use of digital materials must be directly related to the content of the course and must be part of "mediated instructional activities," which means that the digital materials must be the same type of materials that an instructor would use as a part of a classroom session. Ancillary works that might be viewed or listened to outside of class are not included under the exemption.

The TEACH Act permits digitizing analog works as long as the works are not already available in digital form. Commercial works marketed for the educational market, such as electronic texts or workbooks, cannot be used under the TEACH Act exemption, and paper versions of these works cannot be digitized either.

In order to retain the protection offered by the TEACH Act, all materials used in the course must be legally obtained.

Institutional requirements established under the TEACH Act

The benefits of the TEACH Act apply only to accredited non-profit educational institutions or government bodies. Institutions must have policies regarding copyright, and must disseminate information about, and promote, copyright compliance.

Institutions must also provide notice to students that course materials may be copyright protected.

Institutions should limit the online transmissions to students enrolled in the particular course to the extent technologically feasible.

http://copyright.universityofcalifornia.edu/use/teach-act.html

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Fair use is about an evaluation of the variables and weighing the strength of those to reach a conclusion about the appropriate scope of fair use. The resources below may help you determine whether or not something falls into fair use.

• Fair Use Checklist: aids users in considering the strength of the overall conditions that lean most convincingly for or against fair use. Developed by the Copyright Advisory Office of Columbia University.

• Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.