Fair use may not be what you expect. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?
To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision, Section 107 of the U.S. Copyright Act and they have been examined and developed in judicial decisions.
Fair Use is a Balancing Test
To determine whether a use is or is not a fair use, always keep in mind that you need to apply all four factors. For example, do not jump to a conclusion based simply on whether your use is educational or commercial. You still need to evaluate, apply, and weigh in the balance the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work. This flexible approach to fair use is critical in order for the law to adapt to changing technologies and to meet innovative needs of higher education. Not all factors need to weigh either for or against fair use, but overall the factors will usually lean one direction or the other. Also, the relative importance of the factors is not always the same. Your analysis should guide you to a conclusion.
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use.
Courts also favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The “amount” of a work is also measured in qualitative terms.
Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.” On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price. “Effect” is also closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.
There is not an exact amount for how much of a copyrighted work you can utilize under fair use for classroom use. However, the definitions in Table 1 should be used for brevity.
Single copy for teachers: One copy of any of the following can be made for a teacher for their own research, use in teaching, or use in class preparation.
Multiple copies: Copies can be made for classroom use or discussion provided (1) they do not exceed more than one copy per student; (2) copying meets the test of brevity from Table 1 (3) copying meets the test of spontaneity, cumulative effect, and prohibitions from Table 2; and (3) each copy includes a notice of copyright.
Table 3 contains "Best Practice Guidelines for Instructors."
|Article from a journal or other periodical
|Less than 2500 words
|No more than 1000 words or 10% of the work (whichever is less)
|Complete poem is less than 250 words. No more than 250 words for longer poems.
|Short story or essay
|Less than 2500 words
|One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue
Table 2 is a summary of the brevity, cumulative effect, prohibitions, and restrictions from the "Agreement on Guidelines for Classroom Copyright in Not-for-Profit Educational Institutions" section of the Reproduction of Copyrighted Works by Educators and Librarians from the U.S Copyright Office. Please see the full-text within for further clarification.
|Select only one chapter of a book or one article from a journal issue
|Use only 2-3 articles from the same journal (anymore and it is suggested your institution purchase the journal)
|Choose new articles or book chapters each semester
|If you want to use multiple chapters from the same book, ask that the book be placed on course reserve in the library for students to access (rather than make copies).
|Instead of making PDF copies for course modules, try using a link instead instead (hyperlink to the open web or Microsoft OneDrive link of something you have scanned.
|Only make copies of required readings and share lists of optional readings.
|Consider making a print or electronic "course pack" to distribute to students (this will REQUIRE permission from the copyright holders and paying permission fees).
|Consider looking for works in the public domain to use as supplementary readings.
Tables 1,2, and 3 are not definitive guidelines. You should weigh your proposed usage of material with the other three fair use factors (1,2, and 4).
Scenario 1: Several students have ordered textbooks but have not received them for the first week of class. The instructor wants to scan first chapter and place it in Canvas for students to read.
Is this allowed? Yes. One chapter from a required text books weighs in favor of fair use, especially since students have already purchased the book and access is restricted to students in the course. Scanning more than one chapter starts to weigh against fair use (review the four fair use factors).
Scenario 2: An instructor decides to save his students money and have copies of the course textbook printed up so he can give them away to students.
Is this allowed? No. The use is educational but copying the entire textbook and distributing it to students is not fair use because by doing so the instructor has impacted the market value of the work (fair use factor 4). The best solution is for the instructor to purchase a copy (or more than one) and place it on course reserve in the library.
Scenario 3: A professor copies a single article from a journal or other periodical to distribute to class for an assignment.
Is this allowed? Yes. Creating multiple copies of an article for classroom use is fair use. However, the repeated use of a copyrighted article (semester to semester) weighs against fair use. If you believe the material is useful enough to use every semester, you should seek permission from the publisher.
Scenario 4: An instructor wants to scan and post a chapter from a book on Canvas for students to read as part of a class assignment.
Is this allowed? Yes.
Yes, a single chapter is acceptable. However, it must be removed after the semester ends and repeated posting from semester to semester would weigh against fair use. Make sure to check to see if an eBook copy is available in the library catalog before scanning anything.
Scenario 5 : An instructor wants to show a copyrighted film to their class for "instructional purposes."
Is this fair use? Yes. U.S. Copyright Law allows faculty (as long as its for instructional purposes) to do the following with legally obtained copies:
However, this must be a legally obtained copy of the work. Bootlegged or infringed copies are not allowed under fair use.
Scenario 6: An instructor sees a film on YouTube that they know is infringed but decide to show to both their face-to-face and distance education classes anyways.
Is this allowed? No. Instructors are only allowed to show (or provide hyperlinks) to legally obtained copies of films and movies. In this scenario the copy in question was infringed by being uploaded illegally. Even though the instructor did not do the illegal upload, they are providing access to an infringed work and violating copyright.
Scenario 7: A college club wants to show a copyrighted film that is open to to the public.
Is this allowed? Maybe. If the club purchases public performance rights for the film (PPR) they can show the film to an audience according to the terms of the public performance license. Films in MCC's Feature Films for Education database, can be viewed by the public without the purchase of PPR.
Scenario 8: An instructor wants to accommodate their students by creating coursepacks from Cengage course materials that they can print and hand out to students.
Is this allowed? No. Creating coursepacks from copyrighted material does not fall under fair use. To create a coursepack, you must have the permission of the copyright holder.