To maximize your use of copyrighted materials within the boundaries of copyright and other related laws, review the information below which contains the institutional best practices.
If a resource you want to use for a course does not meet any of the exceptions within copyright law, consider the following options:
Section 107 of the U.S. Copyright Act of 1976 provides an exception to the rights of copyright holders. In essence, the public does not have to seek copyright permission from or submit payment to rights holder to use limited portions of their work when the material is used for educational, news reporting, research, criticism and commentary. To determine whether the use of work is considered fair, the statute outlines four criteria that need to be considered.
Fair use is contextual and cannot be defined by a clear set of rules. Each case needs to be looked at individually. After applying the fair use criteria, results usually fall on a spectrum between likely to be fair and unlikely to be fair. Definitive answers are rare.
Suggested Tool: The fair use checklist from Columbia University can be a useful tool to evaluate whether the use of a copyrighted source meets the fair use criteria.
1. Purpose and character of the proposed work - How is the proposed work to be used? Educational or non-profit reasons are more likely to be considered fair than works created for commercial purposes. Also consider how the proposed use transforms the protected work. Is the copyrighted material being used in a different way? Parodies are considered a transformation of an existing work. A piece of art or a clip from a film, which was initially created for entertainment, can be transformed into an intellectual object if it is critically analyzed in an academic setting.
2. Nature of the copyrighted work - Factors to consider is the status of publication (published vs. unpublished) and the level of creativity of the work (nonfiction vs. fiction) of the existing work. Published works tend to be considered more fair to use than unpublished works. Factual works such as textbooks and academic articles tend to lean more towards fair use than the highly creative works such as novels, poetry or plays.
3. Amount and substantiality of the portion used - Two components make up this factor. The quantitative measurement is the amount of the work used. In general, using only what is needed and a small portion of the work are considered to be more fair than using the entire work. From a qualitative perspective, consider whether the portion of the work used is considered the heart of the work.
4. Effect of the use on the market - This factor consider the potential economic impact that the use of work would have on the rights holder. Does the use of a work or portion of the work affect the ability for the copyright holder to make a sale?
Source of Chart: Anne Applin, Head Librarian, Thomas Jefferson High School for Science & Technology. https://sites.google.com/site/tjcitation/teacher-resources-1/fair-use-criteria
The Association of Research Libraries Know Your Copy Rights brochure is a useful guide that discusses what you can use in the classroom that doesn't require you to seek permission or pay royalty fees.
The Chart below, adapted from the brochure, provides a snapshot of the materials that can be used.
| Can I exhibit materials in a live classroom? |
Can I post materials
|
Can I distribute readings?
|
|
|---|---|---|---|
| Public Domain Works | Yes | Yes | Yes |
| Your own works (as long as you kept the copyright or reserved usage rights) | Yes | Yes | Yes |
| Open Access Works | Yes | Link to resource | Link to resource |
| Library licensed resources | Yes | Link to resource | Link to resource |
| Works with a Creative Commons license | Yes | Yes | Yes |
| Other works | Yes | If it meets the Teach Act or Fair Use standards. If not then link or seek permission. | If it meets the Teach Act or Fair Use standards. If not then link or seek permission. |