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Author Resources for Publishing and Scholarship: Copyright and Fair Use

Your one-stop-shop for all your authorship, scholarship, and publishing needs!

Using Copyrighted Materials in the Classroom

As faculty you will often wish to use copyrighted material in your work or in your classroom. The following guidelines will help you do that legally and ethically.
 

Fair Use

Most people consider any educational use of copyrighted materials to be "fair use." Showing movies in class, posting PDFs of articles on D2L, or reusing a table or figure in your own work. Are these common situations really considered fair use, though? The answer is not always clear, and it is particularly important after the landmark Georgia State University Copyright case that educators understand what fair use is and what it isn't.

Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use.

The four statutory factors of fair use are:

  1. The purpose and character of the proposed use
    • Educational use does not automatically render a use fair
    • Many educational uses require the use of exact copies, which is usually less defensible than the use of limited portions of a work
  2. The nature of the work being used
    • The more creative the original work is, the stronger the copyright
  3. The amount of the work being used
    • Using a smaller portion of a work is more likely to qualify as a fair use
  4. The effect of the use upon the market for the copyrighted work
    • Making numerous copies (particularly digital copies) of a work weighs against a fair use finding
    • The Supreme Court has stated that this factor is the most important

However, the four factors do not carry equal weight. Factor four carries the most weight, but not so much weight that it is always outcome determinative. Factor three outcomes will vary based on the effect of the favored nonprofit educational purpose of the use under factor one, plus the impact of market substitution as recognized under factor four. Factor two – due to the use of published, non-consumable and non-fictional works – carries little weight. Recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.

Make ample use of the Board of Regents Fair Use Checklist and the Fair Use Evaluator when considering the use of copyrighted material.

An extremely useful guide to Fair Use by Duke University:

The TEACH Act

The TEACH Act is a specific provision in U.S. copyright law that enables educators to use copyrighted materials in a digital environment, most commonly for distance education.

In order for the use of copyrighted materials in distance education to qualify for the TEACH Act exemptions, the following criteria must be met:

  • The institution must be an accredited, non-profit educational institution.
  • The use must be part of mediated instructional activities.
  • The use must be limited to a specific number of students enrolled in a specific class.
  • The use must either be for ‘live’ or asynchronous class sessions.
  • The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.
  • Only “reasonable and limited portions,” such as might be performed or displayed during a typical live classroom session, may be used.
    The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
  • The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut and paste disabling, etc.

 

For more information, see the The TEACH Act FAQ by the American Library Association.

The University of Texas Library created a useful checklist for determining if the TEACH Act applies to your use:

Permissions

Permission from copyright holders is often needed when creating course materials, research papers, and web sites. You need to obtain permission when you use a work in a way that infringes on the exclusive rights granted to a copyright holder (i.e. outside the boundaries of fair use).

Steps that need to be followed to obtain permission to use copyrighted material:

  1. Determine if permission is needed for the work you want to use.
  2. Identify the copyright holder or agent. 
  3. Send written request for permission to use. Remember to give yourself ample lead time, as the process for obtaining permissions can take months. Decide if you are willing to pay a licensing fee/royalty.
  4. If the copyright holder can't be located or is unresponsive (or if you are unwilling to pay a license fee), be prepared to use a limited amount that qualifies for fair use, or use alternative material.

For more information, visit the Copyright Clearance Center's Obtaining Permission page.

Determining who the copyright holder is can many times be daunting! Your librarians are here to help.

Source

Much of the information and organization for this page was borrowed from the excellent guides at the Association of College and Research LibrariesBoston College, and the American Library Association.

It was adapted for use by the Ina Dillard Russell Library at Georgia College & State University by Jennifer Townes in 2019.