Copyright & Fair Use for Faculty

What is Fair Use?

The purpose of the fair use doctrine is to allow limited use of copyrighted material without obtaining prior permission from the copyright owner.

"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use." 

Source: Copyright.gov

Fair Use Guidelines

"This “fair use” provision of copyright law doesn’t provide hard and fast rules to tell you whether a use qualifies as fair. Instead, the unique facts regarding a use lead you to a reasoned conclusion. Your evaluation should weigh four factors:

1. Purpose and character: If your use is for teaching at a nonprofit educational institution, this is a factor favoring fair use. The scale tips further in favor of fair use if access is restricted to your students.

2. Nature of copyrighted work: Is the work fact-based, published, or out-of-print? These factors weigh in favor of fair use.

3. Amount used: Using a small portion of a whole work would weigh toward fairness. But sometimes it may be fair to use an entire work (such as an image) if it is needed for your instructional purpose.

4. Market effect: A use is more likely to be fair if it does not harm the potential market for or value of the copyrighted work. But if it does, this could weigh more heavily against fair use than the other factors.

Consider each of these factors, but all of them do not have to be favorable to make your use a fair one. When the factors in the aggregate weigh toward fairness, your use is better justified. When the factors tip the scales in the other direction, your need to obtain permission from the copyright holder increases."

Source: Know Your Copy Rights, Association of Research Libraries

What are the Classroom Guidelines?
The fair use exception is purposefully broad and flexible, which can make many educators uncomfortable. The Classroom Guidelines sought to help clarify that ambiguity. Remember, they are the agreed upon minimum and are not the law. A fair use analysis is still needed.

Copyright Circular 21,contains the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions." Commonly called “Classroom Guidelines,” these are the legislative notes associated with the implementation of the current copyright law in 1976 (which first codified fair use) and were minimum guidelines agreed to by educators, authors, and publishers.

Select Guidelines:

• 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 (not to exceed more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:

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

*Example: Notice: This material is subject to the copyright law of the United States.

• Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
• There shall not be more than nine instances of such multiple copying for one course during one class term.
• Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
• There shall be no copying of or from works intended to be “consumable” in the course of study or teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
• Copying shall not substitute for the purchase of books, publishers’ reprints or periodicals;

Fair Use Checklist

Fair use is intentionally flexible and is determined on a case-by-case basis. You can use a Fair Use Checklist or Fair Use Evaluator to help analyze whether a use of a copyrighted work could be considered fair use. 

Consideration of all four factors of fair use is required. However, all four factors do not have to be on the favorable side to reasonably conclude that a use will be fair. If most factors lean in favor of fair use, then the use is probably fair. If most factors lean away from fair use then the use probably isn’t fair. If you determine your use wouldn’t be fair use, please contact your library for help with alternatives or permissions.