Faculty Toolbox for the CBC Library

What is the Fair Use Doctrine?

The Fair Use doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners.

It is not a blanket exemption.
Fair use is a legal argument, not a law.

Individuals can and have been sued, despite believing their use was categorized as "Fair Use". If an individual presses their luck in interpreting copyright law, they will still bear the burden of proof in arguing why their use should be considered an educational exception to copyright law. This can lead to hefty legal fees, even if you win your case. Long story short, err on the side of caution!

Fair use (Section 107 of the U.S. copyright law) is an exception to the rights of copyright owners. Fair use is the right to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant. This includes purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Fair use balances the needs of the public with those of copyright owners and preserves copyright's purpose to promote "science and the useful arts." The flexibility of fair use means that it can be used for all types of copyrighted materials in all formats and may apply to any type of use. 

Fair use is a tool for helping institutions balance the risks involved in the unauthorized use of copyrighted material with their institutional missions and the value of the projects that would not be possible if copyright permission was required in every instance.

The Four Factors: A Fair Use Tool

The two most important questions to ask yourself when evaluating whether your use would be characterized as "fair use" are:

• Are you planning on using the work in a different way, or for a different purpose, than the original creator? In copyright terms, is your use “transformative”?
• Are you using an amount of that work that is narrowly tailored to your new purpose?

Although there is no definitive test which would tell you whether you would win in litigation, if you can answer Yes and prove your response to the above questions, it is likely fair use.

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For a more detailed examination of your use, you can utilize the Four Factors. Congress has provided guidance in determining whether the use made of a work in any particular case is fair. Section 107 of the 1976 Copyright Act specifies four factors for judges to take into consideration when analyzing the specific facts of a case. A final determination on fair use may be made after a careful balancing of each of the factors.

To put it another way, these are the four factors which a judge would consider if you were ever sued for copyright infringement in an educational setting!

Here is a worksheet from Cornell University which is helpful for determining Fair Use.

Factor One: The Purpose and Character of the Use

This factor favors nonprofit, educational uses over commercial uses. Use of copyrighted material is more likely to be fair use under the first factor if it is for teaching (including multiple copies for classroom use), research, scholarship, criticism, comment, or news reporting. It is less likely to be fair if the user profits from the use or if the use is for entertainment purposes.

Transformative uses are also favored under the first factor. These are uses in which the work is used in a new manner or context, distinct from the intended uses of the original.

• What is your purpose in using the material? Are you going to use the material for monetary gain or for education or research purposes?
   

Factor Two: The Nature of the Work

This factor favors fair use for nonfiction works that are factual in nature. Use under factor two is less likely to be fair for creative works such as novels, poetry, plays, art, photography, music, and movies.

The second factor is more likely to favor fair use if a work has been published and less likely if it has not, for example the unpublished letters of a historical figure.

• What is the characteristic nature of work – is it fact or fiction; has it been published or not?

Factor Three: The Amount and Substantiality of the Portion Used

The third factor is more likely to favor fair use when an appropriate amount of the copyrighted work is used in relation to the purpose of the use. Use of copyrighted material is more likely to be fair under the third factor when a small quantity is used and when the portion used is not central or significant to the entire work. It is less likely to be fair if a large portion or the whole work is used, and if the portion used is the "heart of the work."

• How much of the work are you going to use? Small amount or large? Is it the significant or central part of the work?

Factor Four: The Effect on the Market

The fourth factor is more likely to favor fair use when the use of the copyrighted work does not harm the market for the work or its value. When a use is transformative, it is less likely that the market for the original work is damaged.

• How will your use of the work effect the author’s or the publisher’s ability to sell the material? If your purpose is for research or education, your effect on the market value may be difficult to prove. However, if your purpose is commercial gain, then you are not following fair use.

The four factors are not meant to be exclusive and must be examined together. 

What is the TEACH Act?

The “Technology, Education and Copyright Harmonization Act,” commonly known as the “TEACH Act,” was enacted by Congress on October 4, 2002. It is a full revision of Section 110(2) of the U.S. Copyright Act. Its provisions enable educators to use copyrighted materials for distance education, with certain restrictions. The TEACH Act updated the copyright law to remove impediments to the use of new technologies in teaching; it expanded the scope of online educators' rights to perform and display works and to make copies integral to such performances and displays, making the rights closer to those we have in face-to-face teaching.

There is still a considerable gap between what the statute authorizes for face-to-face teaching and for online education.

For example, an educator may show or perform any work related to the curriculum, regardless of the medium, in face-to-face classroom instruction. There are no limits and no permissions required. Under 110(2), however, even as revised and expanded by the TEACH Act, the same educator would have to pare down some of those materials to show them to online students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions".

• TEACH Act Checklist

The TEACH Act authorizes educators to digitize works for use in online education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection. 

The in-classroom activities (even if the classroom is virtual) that the TEACH Act authorizes are a small subset of the uses of online resources educators may wish to make. It only covers in class performances and displays, not, for example, supplemental online reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use.

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In Summary

Under the TEACH Act you may, under certain limited conditions (described on this guide), use short works or portions of larger works in distributed learning situations without first obtaining the permission of the copyright holder.

If you cannot operate within these constraints, you may still be able to provide electronic access to copyrighted materials under the long-standing principle of "fair use." The TEACH Act explicitly provides: "Nothing in this act is intended to limit or otherwise to alter the scope of the fair use doctrine." The provision of downloadable course materials and supplementary reading materials will continue to be subject to the fair use doctrine exclusively.

Material Authorized for Online Display Under the TEACH Act

In order to qualify to use copyrighted materials under the TEACH Act, several conditions must be satisfied:

Faculty Responsibilities:

1. The material must be provided at the direction of or under the supervision of an instructor and must be an integral part of the course curriculum (i.e., not merely entertainment or unrelated background material).
2. Only display online copies that were lawfully made and acquired. Use of pirated works or works copied from a television broadcast is prohibited.
3. Only display online material that is an integral part of the course, part of a “systematic mediated instruction activity” (in other words, class session(s) must be dedicated to teaching the material), and directly related and of material assistance to the teaching of the course.  Use of the material must be a required class assignment (and not an optional or supplemental assignment or activity).
4. Do not display online textbooks, course packets and other materials students are typically required to purchase for the course.
5. The amount of material provided must be comparable to that typically displayed in a live classroom session. For certain works, the display of the entire work could be consistent with displays typically made in a live classroom setting (e.g., short poems or essays, or photographic images). Distribution of entire textbooks, course-packs or supplemental readings would not be authorized under the TEACH Act.
6. You must provide notice to students that materials distributed in the course may be subject to copyright protection.
    

Technological Requirements:

Technological measures must be employed so that:

1. To the extent technologically feasible, the transmission of material is limited to students enrolled in the course (through password-restricted access or other similar measures);
2. The material is available to students for a limited duration no longer than the "class session" i.e., the period during which a student is logged on to the server. Students may not be permitted to retain a permanent copy of the material or to further disseminate it.
3. Do not display online materials that are sold or licensed primarily for online education.

Institutional Requirements:

The TEACH Act requires that colleges:

1. Institute policies regarding copyright. See CBC's Copyright Policy.
2. Provide information to faculty, staff, and students that accurately describes and promotes compliance with copyright law.

Additional Guidance:

1. If you intend to use works in analog format, find out if a lawfully made digital version is available for purchase, rental or license. If a digital version is available, you must use that digital copy and not reproduce the analog version into digital form. If a digital version is not available, then you must legally obtain the analog version; then material on the analog version may be converted into a digital format and displayed online. The amount used is still subject to regular copyright law and must adhere to the fair use doctrine.
2. Non-dramatic musical or literary works: If the material is a performance of a non-dramatic musical or literary work (e.g. music, poetry or short story reading), then the entire work may be used.
3. Dramatic musical or literary works: If the material is a performance of a dramatic musical or literary work (e,g, film, music video, opera, musical, etc.), limit use of the work to an amount and duration comparable to what would be displayed or performed in a live classroom session. Generally, instructor-created compilations may be displayed online.
4. Alternatives to the TEACH Act: If the digital display of any material is desired, but not authorized under the TEACH Act, seek a license directly from the copyright holder or determine if the unauthorized use may be exempted under the “fair use” provisions of the Copyright Act. 

Adapted from Yale University TEACH Act Guidelines

Restrictions on Access Under the TEACH Act

The TEACH Act does not authorize:

1. The use of works specifically created for use as distance learning products.
2. The use of works that you know or have reason to believe are pirated i.e. not lawfully made. This could include many copyright-protected films and much music downloaded from the Internet.
3. The conversion of print or other analog versions of works into digital formats unless:

   no digital version of the work is available; or
   the digital version employs technological protection measures that prevent its use;

   and then, conversion is only permitted with respect to the portion of the work authorized to be performed or displayed under the TEACH Act's size restrictions.

Additional Limitations

1. Current enrollment: Restrict access to course webpages on which copyrighted materials are loaded only to students enrolled in the course.
2. Duration of access: Restrict the duration of such access only to the length of time comparable to a live classroom session.
3. No retention, dissemination or reproduction: Retention of any copies past the class session, dissemination of any copies, and the making of any copies by enrolled students or by other authorized course website users are prohibited.

Notice Required Under the TEACH Act

Make sure a notice similar to the following is placed prominently on each course website:

Materials in CBC's courses and websites may be subject to copyright protection, and may be restricted from further dissemination, retention or copying. Unauthorized use of copyrighted materials is subject to disciplinary action pursuant to the College's policy against copyright infringement, and to civil and criminal liability provided under federal copyright law.

Adapted from Yale University TEACH Act Guidelines

• To learn if your intended use of media in the classroom qualifies as an educational use, refer to these available online tools
• https://librarycopyright.net/resources/, Copyright Advisor Network.
• Exemptions for Instructors eTool, American Library Association.
• The Fair Use Index allows you to review recent findings in Fair Use litigation.

Copyright law is primarily updated, revised, and determined by legal cases. This means that current topics in scholarship related to copyright (we're looking at you, A.I.), have yet to be adjudicated to an extent where we have precedent to guide us.

• American Geophysical Union v. Texaco, Inc.
  • Not a Fair Use. American Geophysical Union and 82 other publishers which sold journal subscriptions to Texaco alleged that Texaco’s employees infringed their copyrights by repeatedly photocopying individual journal articles without permission and distributing them. The court found that this was not fair use because Texaco’s actions were “part of a systematic
    process of encouraging employee researchers to copy articles so as to multiply available copies while avoiding payment.” The court found that employees were copying whole articles and that such copying interfered with the commercial value of the articles.
• Basic Books, Inc. v. Kinko’s
  • Not a fair use. Kinko’s used course readings lists from colleges and, without asking permission or paying copyright fees, photocopied excerpts from assigned readings to create “course packets,” which they sold to students at a profit. The court found that this was not fair use, as it was for a commercial purpose and would harm publishers’ sales. The court also noted that there was no compelling educational reason to copy the materials without permission or paying fees.
• Cambridge University Press v. Patton
  • Fair use (mostly). In a case alleging 75 instances of infringement in an educational setting, a district court, proposing a fair use standard based on less than 10% of a book, determined that 70 instances were not infringing. On appeal, the Eleventh Circuit rejected the 10% standard and emphasized the importance of a flexible case-by-case fair use analysis. The case was remanded to the district court which, in 2016, found the majority of instances to be fair use. Important factors: On remand, the second factor (the scholarly nature of the work) and the fourth factor (impact of the use on the market value) weighed in favor of fair use. Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014).
• Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).
  • Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important factors: The letters were unpublished and were the “backbone” of the biography—so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author.