More To Do
How do you determine if your use qualifies as fair use?
We recommend using these handy checklists to guide your decision-making. It is also advised to maintain them for your records.
Why do this?
Section 504 (Copyright Infringement and Remedies) of the U.S. Copyright Law reduces liability for educators and librarians who make a reasonable and good faith effort to determine whether a particular use is fair. Your use of a checklist demonstrates this type of good faith effort
UPDATE: FYI- From Stanford University
Rich Stim is corporate counsel for Nolo. Rich is also the author of several Nolo intellectual property books including:
- Patent, Copyright & Trademark
- Patent Pending in 24 Hours
- Music Law: How to Run Your Band's Business
Considering Fair Use?
What is fair use?
Copyright in the classroom for educational purposes generally falls under fair use. However, instructors should always be aware of copyright issues regarding reserves and the provision of copies of documents to students. The Teach Act also is of importance and should be consulted if you are interested in using materials to teach students at a distance.
Fair Use is a principle within copyright law that allows the limited use, for limited purposes, of copyrighted material without permission of the copyright holder. Prior to 1991, it was believed that reproduction—primarily by photocopying—for academic coursepacks qualified as fair use. As a result, coursepack anthologies were often compiled and distributed without the permission of copyright holders. Two court decisions changed this thinking:
- In 1991, a federal trial court ruled that Kinko's copying of portions of books for use in an academic coursepack was not fair use. (Basics Books Inc. v. Kinko's Graphics Corp.)
- In 1996, a federal Court of Appeals upheld a different trial court's decision against a copy shop owner who copied course material for students and instructors. (Princeton University Press v. Michigan Document Services.)
It is now well established that photocopying materials for academic coursepacks requires permission from the copyright holder or its agent.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
For the complete text of the law, see: http://www.copyright.gov/title17
When can you apply fair use?
Fair Use is analyzed on a case-by-case basis. Fair use is extremely important to educators, but not all fair use cases are educational in nature and not all educational uses will be fair.To determine if your intended use of a work is fair, you must balance the use based on the four factors above. If your responses weigh in favor of fair use, then you may use the material without obtaining permission from the copyright holder. If your responses weigh against fair use, then you are best advised to obtain permission for the use.
NOTE: Well-established guidelines indicate that repeated use of the same materials may tip the balance against fair use. If this is the case, you should seek copyright clearance for each subsequent use of the materials.
For more information on each of the four factors and handy checklists that may be used to make and maintain records of fair use decisions, see the column on the left.
Fair Use and Reserves
The policy governing Reserves is based on the fair use provisions of the United States Copyright Act of 1976. Section 107 of the Copyright Act expressly permits the making of multiple copies for classroom use:
- Notwithstanding the provisions of sections 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.
In determining fair use, four factors are considered:
- Purpose: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- Nature: the nature of the copyrighted work
- Amount: the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- Effect: the effect of the use upon the potential market for or value of the copyrighted work.
Materials that do not require copyright permission include:
- Exams, syllabi, and lecture notes of the instructor who is placing the material on Reserve, most federal government publications, a single journal article or book chapter used for one semester, works of art used for one semester, or material for which the instructor owns copyright.
Materials that require copyright permission include:
- A journal article or book chapter intended for use for more than one semester.
- Multiple chapters from a single book or multiple articles from a single journal issue.
- Artwork intended for use for more than one semester.
Fair Use in the Archives
The Fair Use Doctrine provides for the citing of copyrighted materials, including use of archival materials, without necessarily seeking permission. Critical to Fair Use is the use of copyright protected materials in:
- Otherwise "transformative" use
When using archival materials, "transformative" use often applies due to the processs of drawing upon, quoting, and citing letters, memoranda, reports, and other documents in research papers. In such cases, you are fairly using original and primary sources.
When citing archival materials, focus on helping the reader identify what is being cited and where it is located; thus include the following elements:
- Repository where the item is held. Example: University of South Dakota Archives and Special Collections.
- Collection in which the item is found. Example: Peter Norbeck Papers.
- Series in which the item is found. Example: Bank Correspondence.
- Folder title in which the item is found (if available). Example: Federal Reserve, 1933-1935.
- The document itself, including page, section, or date information, where necessary. Letter, 22 May 1933.
Unpublished Works: Unless otherwise designated, the rights of unpublished works by known authors reside with the author during his/her lifetime and then pass to any heirs for 70 years after death. Thus, the gift or sale of collections does not implicitly transfer copyright to a repository.
Unpublished anonymous works and works for hire are protected by copyright for 120 years from the date of creation. Upon the expiration of these time periods, unpublished works pass into the public domain.