Copyright/Fair Use Guidelines
Under the Copyright Act, copyright owners have the exclusive right to reproduce, distribute, perform, display, and prepare derivative works of their creations. If another person desires to reproduce or use a copyrighted work, that person must either seek permission from the copyright owner or fall within the Copyright Act’s “fair use” exemption. “Fair use” is a defense to copyright infringement that allows one to use a copyrighted work under certain conditions without the permission of the copyright owner, as discussed in more detail throughout this document.
If you have any questions about whether a particular use constitutes “fair use,” please contact your Department chair or academic Dean.
Fair Use Factors
There are no bright line rules or tests with the fair use doctrine. To determine whether a use is “fair use,” courts weigh the four factors outlined below. Following each factor are some considerations that, if true in a particular situation, are suggestive of fair use as it relates to that factor. Keep in mind that each of the four factors must be considered; no single factor is dispositive when determining whether a particular use is appropriate.
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- Materials are provided only for the purpose of serving the educational needs of the course and only for one course
- Students are not charged a fee for the course materials, nor does the University benefit monetarily from the use of the materials.
The nature of the copyrighted work.
- The selected work is directly relevant to the learning objectives for the course
- Careful consideration was taken with regards to “consumable” materials that are meant to be used and repurchased
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- Amount of materials provided are limited, consisting of less than 10% of the total work
- The amount of work provided is directly related to the learning objectives in the course
The effect of the use upon the potential market for or value of the copyrighted work.
- Materials provided include a citation to the original source of publication and a form of copyright notice when applicable
- Materials are made available exclusively for students enrolled in the course and for educational purposes only within the course; students may not distribute the materials beyond the limits of the course
- Access to materials is limited by password to deter unauthorized access beyond the use of the course
- Materials provided include works that the instructor, the library, or University has lawfully obtained a copy
- Materials are not provided that are reasonably available and affordable for students to purchase
Guidance For Educators Related to Photocopying
The U.S. Copyright Office has published guidance to help educators analyze what types of photocopying is consistent with the fair use doctrine (available at: http://copyright.gov/circs/circ21.pdf). This guidance was established by publishers and the academic community. While the guidance is not part of the Copyright Act, it is recognized by the Copyright Office and by judges as minimum “safe harbor” standards for fair use in education. It must be understood, however, that this guidance is not legally binding.
Several portions of the guidance that are particularly relevant to the educators at Doane University are summarized in the forthcoming subsections. Note that this guidance specifically acknowledges that (1) these guidelines are subject to change in the future, and (2) it is conceivable that there may be situations where copying does not fall directly within the guidelines but may nonetheless be permitted under the fair use doctrine.
An educator may make a single copy of the following for use in scholarly research, teaching, or preparation to teach a class:
- 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 for Classroom Use
An educator may make multiple copies of a work for classroom use or discussion so long as the educator adheres to the following guidelines:
- The number of copies made cannot exceed more than one copy per student in the course
- Each copy must include a notice of copyright if represented on the original work
The copying meets the tests of “brevity” and “spontaneity,” which are as follows:
- Poetry: (a) A complete poem if the poem is less than 250 words and printed on two or fewer pages, or (b) An excerpt from a longer poem, the excerpt not exceeding 250 words
- Prose: (a) A complete article, story, or essay if the article, story, or essay is less than 2,500 words, or (b) An excerpt from a longer article, story, or essay, the excerpt not exceeding 1000 words or 10% of the work, whichever is less
- Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue
- The copying must be at the instance and inspiration of the individual educator, not from educational institution administrators or higher authorities
- The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely report to a request for permission.
The copying meets the “cumulative effect test,” which is as follows:
- The copied materials can only be used for one course
- Not more than one short poem, article, story, essay or two excerpts may be copied from the same author during one class term
- Not more than three short poems, articles, stories, essays or excerpts may be copied from the same collective work or periodical volume during one class term
- There may not be more than nine instances of multiple copying for one course during one class term
- However, as a general rule, an educator has more freedom to copy from current newspapers and the news sections of other current periodicals if the copying is related to a current event
Prohibitions Related to Photocopying
Regardless of whether the requirements related to photocopying outlined above have been met, the following is prohibited:
- Classroom copying cannot be used to replace workbooks, texts, standardized tests or other materials that were created for educational use (in other words, educators cannot usurp the profits of educational publishers through their copying)
- There can be no copying of works intended to be “consumed” in the course of study, such as workbooks, exercises, test booklets, answer sheets, and like consumable materials
- Copying cannot be used to create, replace, or substitute anthologies, compilations, or collective works
- Students cannot be charged more than the actual cost of the photocopying
- Copying cannot be repeated with respect to the same item by the same educator from term to term
Other Fair Use Guidance For Educators
Other sources, including case law and the Copyright Act itself, provide additional guidance related to the fair use doctrine that is useful for educators. The subsections below discuss this guidance.
A course pack is a compilation of materials (e.g., articles from journals, chapters from textbooks, and various other readings) that an educator assembles and requires students to purchase. Due to variations in the copyright restrictions for each individual work, educators should obtain permission to copy and use copyrighted works they wish to include in their course packs. The use of off-campus photocopy centers does not relieve the educator of this responsibility.
Performance or Display of a Work in the Classroom
The Copyright Act contains a provision allowing an educator to perform or display a copyrighted work in the course of face-to-face teaching activities that occur in the classroom or a similar place devoted to instruction (e.g., laboratory, studio, etc.). This applies to any copyrighted work, regardless of the medium. Therefore, educators can use sound recordings, movies, films, videos, readings, poems, plays, musical works, live performances, slides, or any other performance or display of a copyrighted work without restriction or permission, so long as the educator is using it in the course of face-to-face teaching activities in a classroom or a similar devoted place. However, an educator may not use a movie or other audiovisual work that the he or she knows or has reason to believe was not lawfully made.
Note that the guidance in the paragraph above does not allow an educator to make copies. Rather, it merely authorizes the educator to perform or display the work. Additionally, it does not allow the educator to post the work on his or her web page, since doing so would not be considered face-to-face teaching that occurs in a classroom or similar setting. Further, if an educator wishes to record, videotape or transmit a class session in which he or she performs or displays a copyrighted work, a different analysis, as discussed in the next subsection, applies.
The Copyright Act also contains provisions allowing the use of certain copyrighted works in distance education settings, such as courses offered via internet or closed-circuit television. However, these provisions impose requirements that are much more rigorous than the requirements imposed in face-to-face classroom settings. In order for the transmission of a copyrighted work in a distance education setting to comply with the law, educators must consider the following guidelines:
- The transmission of the copyrighted work must be limited to “students officially enrolled in the course for which the transmission is made” to the extent “technologically feasible”
In the case of digital transmissions:
- Technological measures must be applied to reasonably prevent the retention of the work in accessible form by the recipients for longer than the class session
- Technological measures must be applied to prevent unauthorized further dissemination of the work in accessible form
- Conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent retention or unauthorized further dissemination must be avoided
The work being transmitted may be any of the following:
- Performance of a nondramatic literary work
- Performance of a musical work
- Performance of any work in “reasonable and limited portions”
- Display of any work “in an amount comparable to that which is typically displayed in the course of a live classroom session”
The work being transmitted may not be any of the following:
- A work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks
- A performance or display given by means of a copy not lawfully made and acquired under the Copyright Act and that the educational institution knew or had reason to know was not lawfully made and acquired
- The performance or display must be made at the direction of or under the actual supervision of the educator
- The performance or display must be an integral part of a class session offered as a regular part of the systematic mediated instructional activities of the educational institution
- The performance or display must be directly related and of material assistance to the teaching content of the transmission
A work may be converted from print or analog form to digital form (limited to the amount that may be performed or displayed as set forth above) only if:
- No digital version of the work is available to the educational institution, or
- The digital version of the work that is available has technological protection measures that prevent its availability for performed or displayed
The Technology, Education and Copyright Harmonization Act (TEACH Act) of 2002 (see 17 U.S.C. § 110(2)) modified the Copyright Act to allow for the use of copyrighted works of third parties in distance learning activities conducted over internet. The TEACH Act allows educators at accredited, non-profit educational institutions to copy and transmit copyrighted works over distance learning networks without the permission of the copyright owner or the payment of royalties provided certain conditions are met. In order to take advantage of the TEACH Act, the following factors must be met:
- The work must be legally acquired;
- The use must occur under the supervision or direction of an instructor;
- The use must be directly related to the content of the course;
- The use must be a regular part of a mediated instructional activity;
- The work can only be accessed by or transmitted to students who are officially enrolled in the course;
- To the extent technologically feasible, measures must be taken to protect the work from further distribution outside the class and to prohibit retention of the work by the students;
- Copies of the work can only be made available to students for so long as is reasonably necessary to complete the transmission of the information to the students (for example, the duration of a class session).
All material displayed under the TEACH Act must contain the following notice:
The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. The materials on this course website may be protected by copyright, and any further use of this material may be in violation of federal copyright law.
The TEACH Act does not permit the following:
- Uploading material that was illegally obtained;
- Uploading material that would typically be purchased by students for use in a class, such as textbooks, coursepacks and study guides;
- Uploading materials specifically created for distance education.
Digitizing works only available in analog format for transmission to students in distance learning courses is allowable provided that there is no digital copy of the work available for use, purchase or licensing by the University, and that only the relevant portion needed for transmission is digitized.
The digital millennium copyright act (DMCA)
With regard to use of copyrighted materials in an educational context, it is important to ensure compliance with certain other provisions of the DMCA. The DMCA sets forth a general prohibition on circumvention of technological measures that control access to a digital work. An example of this the encryption program on a DVD that prevents its contents from being copied. Most importantly, the DMCA prohibits gaining unauthorized access to a work by circumventing a technological protection measure even if the use of the work would otherwise be a fair use. The DMCA also prohibits trafficking in technology or devices that are primarily designed to circumvent such a technological measure. Violations of the DMCA carry severe penalties, including large fines and imprisonment.
This means that fair use cannot be claimed as a defense for violations of the DMCA. In addition, educational or classroom uses otherwise allowed by law will not protect one from punishment for a violation of the DMCA. However, the anti-circumvention language of the DMCA only applies to digital content to which a technological protection measure has been applied. University faculty and staff are encouraged to make use of analog media or to use only digital media that is not copy-protected if possible when considerations of fair use are necessary.
Educational Multimedia Projects
Proposed guidelines have been drafted by copyright owners and educators relating to educational multimedia projects. These guidelines are not part of the federal Copyright Act, but they are recognized as minimum “safe harbor” standards for fair use in educational multimedia projects. It must be understood, however, that these guidelines are not legally binding. Below is a summary of these guidelines that can be used when determining whether a particular educational multimedia project would be within the bounds of the “fair use” exemption.
Use: Educators may perform and display their own multimedia projects created under the proposed guidelines in the following situations:
- Face-to-face instruction
- Assignments for student self-study
- Remote instruction provided the network is secure and designed to prevent unlawful copying
- For conferences, presentations, and workshops
- For their professional portfolio
- Time Limitation: Educators may use their educational multimedia projects for teaching courses for a period of two years after first use with a class. After two years, the educator must obtain permission for each copyrighted portion incorporated in the multimedia project.
Types of Media and Permissible Amounts: The following types of media may be used in the following amounts:
- Motion media: Up to 10% of the total or three minutes, whichever is less
- Up to 10% of the total or 1,000 words, whichever is less
- An entire poem of less than 250 words, but no more than three poems by one poet or five poems by different poets in an anthology. For poems exceeding 250 words, 250 words, but no more than three excerpts by one poet or five excerpts by different poets in an anthology.
- Music, Lyrics, and Music Video: Up to 10% of the total, but not more than 30 seconds from an individual musical work
Illustrations and Photographs
- Up to five images from one artist or photographer
- Up to 10% or 15 images, whichever is less, from a collection
- Numerical Data Sets: Up to 10% or 2,500 fields or cell entries, whichever is less, from a copyrighted database or data table
When Permission is Required: An educator must obtain permission from the copyright owners in the following situations:
- Before the educator uses the multimedia project for commercial or non- educational purposes
- Before the educator makes two or more copies of the multimedia project
- Before the educator distributes the multimedia project beyond the scope of the proposed guidelines
- Before the educator uses the multimedia project outside of the two-year period from when it was first used with a class
- Use: Educators may perform and display their own multimedia projects created under the proposed guidelines in the following situations:
Obtaining Permission To Use A Copyrighted Work
If the reproduction or use of a copyrighted work does not fall within the Copyright Act’s “fair use” exemption, the person who desires to reproduce or use the copyrighted work must seek permission from the copyright owner. In doing so, there are no special forms that must be used, and it is best practice to obtain permission in writing. When making the request, specify details such as the title of the copyrighted work; the precise pages, chapters, photographs, how many copies will be made and distributed, and the purpose of the copying and/or use.
If a work is enrolled with a clearing house, such as the Copyright Clearance Center (CCC), an educator may obtain permission from the clearing house rather than contacting the copyright owner.