Copyright and Fair Use Guidelines

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research.

However, not all use is fair use, simply because it occurs in an academic setting.

The four factors (think of PANE) to be considered in determining whether or not a particular use is fair:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The nature of the copyrighted work
• The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation.

- From the web site of the U.S. Copyright Office

Recent Developments: The Georgia State University "fair use" case, which decided in favor of Georgia State's practice by faculty members of scanning books and journal excerpts and hosting them in the university’s electronic reserves, was reversed and remanded by the Court of Appeals of the 11th Circuit on October 17, 2014, see case here. The district court originally determined in 2012 that 94 of the 99 instances of claimed copyright infringement were fair use and only 5 were infringing. The case appeared before the district court again after the Court of Appeals for the Eleventh Circuit reversed and remanded the case in October 2014, directing the trial court to revisit its fair use analysis. The Eleventh Circuit’s opinion rejected an arithmetic approach to the four fair use factors (that is, the idea that if three of the factors favor fair use, but one disfavors fair use, then fair use will always apply). On remand, the district court considered 48 infringement claims, revisited the fair use assertions by Georgia State University, and found that the vast majority were fair use.

Most current decision (March 2, 2020): https://www.docdroid.net/Hdk4qvG/cambridge-university-press-et-1.pdf

Fair Use Analysis Tool:  guides users through the process of determining if a use is fair. Developed by The University of Minnesota Libraries.

Fair Use Evaluator:  helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.

Exception for Instructors e-tool: guides users through the educational exceptions in U.S. copyright law, helping to explain and clarify rights and responsibilities for the performance and display of copyrighted content in traditional, distance and blended educational models.

NYU Academic Copyright Scenarios: The scenarios are intended to help faculty and students evaluate fair use. These scenarios are illustrative, not exhaustive. The examples deal with situations involving: Printed Materials, Video Recordings,Multimedia Projects, Distance Education, and Electronic Course Reserves.

Listed here are links to best practices by universities. Certainly these are not hard and fast rules, but provide a practical starting point when looking for some guidance.