LibGuides: Faculty Guide to Open Educational Resources (OER): Copyright and Fair Use

Copyright and Fair Use

What is Copyright?

The goal of copyright law, as grounded in the U.S. Constitution, is to promote the progress of science and the useful arts.

Copyright is a form of protection granted to authors that provides them, for a limited period of time, with certain exclusive rights. These rights are intended to encourage authors to create, thereby providing society with valuable works.

The limitation on the length of copyright (as well as other limitations such as fair use) balances the benefits of incentives for authors with the benefits of allowing the public to make use of copyrighted materials in a free and democratic society.

Limitations on Copyright

In order to balance the needs of users with those of rights holders and to preserve copyright's purpose to promote science and the useful arts, copyright law contains a number of exceptions.

For example:

Section 107: Fair use — Permits use of copyrighted material without acquiring permission. Examples of fair use include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research.
Section 108: Library copying — Allows libraries to make copies of works for preservation, research and study, and interlibrary loan.
Section 109(a): First sale doctrine — Limitation on the copyright holder's distribution right that states that once a copy of a work has been lawfully sold, the owner of the copy is free to resell it, rent it, loan it, or give it away. Allows for library lending, video rentals, used book and CD sales, and the ability to give copyrighted materials as gifts.
Section 109(c): Exception for public displays — Allows the owner of a lawfully made copy of a work to display it to the public at the place where the work is located. Allows for display of art in museums and bookstore and library displays, for example.
Section 110(1): Displays and performances in face-to-face teaching — Allows for the performance and display of copyrighted materials in the course of face-to-face teaching at nonprofit educational institutions.
Section 110(2): Displays and performances in distance education (TEACH Act) — Ability to display or perform certain types of copyrighted works in the course of distance education. Use of 110(2) is subect to many conditions, including establishing institutional policies and implementing technological controls.
Section 117: Computer Software — Owners of computer software can make backup copies and modify the software so that it works on a specific computer platform.
Section 120: Architectural Works — Anyone may take and use photographs of publicly visible buildings without infringing the copyright in the architectural design.
Section 121: Special formats for the blind or other people with disabilities — Organizations that serve the disabled can reproduce or distribute copies of previously published, nondramatic literary works in specialized formats for use by the blind or other persons with disabilities.

Many of the exceptions in copyright law apply only to certain types of works under very specific conditions. The exceptions can be difficult to understand and apply without the advice of a lawyer.

In contrast, fair use is easier to understand, applies to all types of works, and is flexible. It is for these reasons that this guide recommends relying on fair use when deciding when and how to use (or not to use) third-party copyrighted material in online education.

Your first and best option is to use Open Educational Resources (OER) as alternatives to the copyrighted material.

Your librarians are always available to you to help find and utilize these resources appropriately. However, if you need to digitize a hard copy resource, there is some flexibility available to you under the guidelines of Fair Use. If you cannot make a good argument for Fair Use using the guidelines below, please make every effort to contact the publisher to request permission or purchase a digital option.

Determining Fair Use

Fair use is a doctrine of U.S. copyright law which gives exceptions to certain uses of copyrighted materials, which would otherwise be copyright infringement. To determine if fair use applies to your use, the four fair use factors must be applied. The American Library Association offers a Fair Use Evaluator online tool to help you document your fair use case, or you can use the checklist below; neither constitute legal advice.

Instructions:

The checklist is a tool that allows you to perform a rigorous fair use analysis, by completing each portion of the checklist below.
Not all of the statements under each factor will be present in any given situation. Check only those that apply to your use.
Where there are counter (opposing) statements, usually only one or the other applies.
No single item or factor is determinative of fair use, but some factors carry more weight than others, as indicated below.
The final determination is based on a weighing or balancing of the four factors. You do not need to have all factors or all details pointing in favor of or against fair use. (It’s not “all or nothing”.)
The use of this checklist is a good way to demonstrate your good faith attempt to follow the doctrine of fair use. Complete and retain a copy of this checklist for each fair use of a copyrighted work, should any dispute arise.
All shared materials should include a notice attributing the original source of the work.
Copies must be made from legally owned copies (personal or CBC-owned).
Contact CBC Library for help in making a fair use determination.

Factor 1: Purpose and Character of the Use

Weighs in Favor of Fair Use	Weighs Against Fair Use
☐ The use is for the purpose of teaching in a non-profit educational institution (including multiple copies for classroom use).	☐ The use is for a commercial purpose
☐ The use is for criticism, comment, news reporting, or parody; or the use is transformative.	☐ Mirror image copying without the addition of criticism, comment, parody, or transformation of presentation or use.
☐ The use is necessary to achieve an intended educational purpose.	☐ The use is not necessary to achieve an intended educational purpose.
☐ Distribution is limited by password to students within a class for the term of the course; students acknowledge copyrighted nature of the materials.	☐ Unlimited or uncontrolled distribution

Factor 2: Nature of the Work

Give this factor less weight when the work is published, non-consumable, and non-fictional

Weighs in Favor of Fair Use	Weighs Against Fair Use
☐ The work is non-fictional (factual) in nature.	☐ The work is fictional or highly creative
☐ The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work.	☐ The work is non-fictional in nature and author opinion, subjective description and evaluative expression dominate the work.
☐ The work is “non-consumable”	☐ The work is “consumable”, e.g. a workbook or test
☐ The original work has been published	☐ The work has never been published.

Factor 3: Amount and Substantiality of Portion Used

There is no set rule regarding amount used (e.g. rules such as 10% or 1 chapter have been rejected by the courts). You should avoid using a portion that is the “heart” of the work.

Weighs in Favor of Fair Use	Weighs Against Fair Use
☐ A decidedly small amount such as one chapter or less of the work is used.	☐ Multiple chapters of the work are used.
☐ Amount used is narrowly tailored to accomplish educational objective in course curriculum.	☐ Amount used is more than is necessary to accomplish educational objective in course curriculum.
☐ A small number of chapters of the work are used, and you have concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.	☐ Multiple chapters of the work are used, and you have not concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.

Factor 4: Effect on the Market for Original

Note: you must own a lawfully acquired or purchased copy of the original work that is used: this may be a personal copy or a copy owned by the institution (e.g. a library copy) – this may NOT be a copy obtained through Interlibrary Loan or other rented or borrowed source.

This factor carries the most weight, but is not so weighty that it determines fair use analysis. Favorable use of the first 3 factors may outweigh unfavorable results here.

Weighs in Favor of Fair Use	Weighs Against Fair Use
☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is NOT available.	☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonable priced digital license IS available.
☐ The work as a whole is not available for purchase, and a digital license is NOT available.	☐ The work as a whole is not available for purchase, and a digital license IS available.

Based on the University System of Georgia “Fair Use Checklist”. Used with permission.

Fair Use FAQ

Q: What about images, video clips, or other multimedia? Don't special rules apply?

A: The Fair Use doctrine makes no distinctions between different media or formats. Therefore the four fair use factors can still be applied to use of multimedia. However, some common uses listed below are typically considered fair use:

Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.
Students may perform and display their own multimedia projects for educational uses in the course for which they were created and use in their own portfolios as examples for later personal uses (e.g. job and graduate school interviews).
Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions
Educators may perform and display their own multimedia projects in face-to-face instruction or posted online in a secure location, such as Canvas.

Q: The rules keep repeating to use a "lawfully acquired copy". What exactly is a "lawfully acquired copy"?

A: In the case of educational use, it means copying the portion of the work you use from a personal copy or a college-owned copy (often a Library copy). Specifically, copying a portion from a rented or interlibrary loaned copy is *NOT* using a lawfully acquired copy, because it was only borrowed, not owned by the instructor or the institution.

Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the student's textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the text with some additional material. To do this, she selects individual poems from a variety of poets, scans them, and posts them to the course reading section of the course's Brightspace site. One of the poems she wants students to read is the book-length The Book of Nightmares (Mariner, 1973) by Galway Kinnell, so she scans the 88-page book to PDF and uploads it to Brightspace. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Garcia's use is transformative. The original purpose of The Book of Nightmares is aesthetic. Professor Garcia is using the poem to instruct students in the themes, techniques and development of modern American poetry. She places the work in question in the broader context of the other readings in the course, and we can presume that she will offer critical commentary about the poem and explain its significance within this framework.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Professor Garcia's use is transformative, and she is using the work for nonprofit educational purposes, both of which strongly favor fair use. Not favoring fair use, however, is the fact that the work is highly creative and that she reproduced it in its entirety. The book is still in print, thus the rightsholder could make a strong argument that the professor's use (and similar uses, were they to occur) damaged the market for the book. The fair use argument is helped by the fact that the book was placed in Brightspace and access was limited to students enrolled in the course. The fact that students can download the file and potentially redistribute it, however, is a liability.

Fair use: Probably not.

Faculty Guide to Open Educational Resources (OER)