Copyright & Fair Use
Copyright is the affirmation of the rights of authors, inventors, creators, et cetera of original works. It is intended to promote authorship, invention, and creation by securing certain rights. The basis for modern copyright law (U.S. Code Title 17) is found in the U.S. Constitution (Article I, Section 8, Clause 8):
"...to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The exclusive rights of the creators of original works include copying, distribution, displaying and performing. Creations that can be copyright protected include (but are not limited to): books, plays, journals, music, motion pictures, photographs, paintings, sculptures, digital files, sound recordings, computer programs, websites, dance choreography, architecture, and vessel hull designs. The copyright on creations also extends to the copying, distribution, displaying, and performance of derivative works. Copyright also covers unpublished works.
Where does this leave educators, students, and researchers? Read on.
Copyright not only protects creators and their creations, it also legally establishes the defensible position of the public to access and use copyright-protected works for educational and research purposes.
In Section 107 of Chapter 1 of Title 17 of the United States Code, fair use is explained as a limitation to the exclusive rights of copyright holders. The section reads:
[...] the fair use of a copyrighted work [...] 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 whether the use made of a work in any particular case is a fair use the
factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The four factors seem ambiguous because they are meant be guidelines and not firm restrictions. The determination of fair use vs. copyright infringement is often made on a case-by-case basis. Often, questions help the four factors make more sense:
(1) the purpose and character of the use
Is this for educational or research purposes? More Fair.
(2) the nature of the copyrighted work
Is this work factual and published, like a journal article? More Fair.
(3) the amount and substantiality used
Will only a small portion be used? More Fair.
(4) the effect of the use upon the potential market for or value of the copyrighted work
Will this not reduce sales or make the work more widely available than it already is? More Fair.
A helpful resource for understanding the four factors better is Using the Four Factor Fair Use Test (UT Austin).
Can I photocopy an entire book, music score, or play that is out of print for class instruction or course reserve?
No. Out of print does not mean out of copyright. Follow Fair Use guidelines and only copy a small portion or seek the copyright holder to get permission.
How many chapters of a book can I put on reserve?
Depends. The Library looks at reserve requests on a case-by-case basis if necessary. Circular 21: Reproduction of Copyrighted Works by Educators and Librarians (copyright.gov) contains (on page 6) the section "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals." It offers guidelines on fair use in educational settings, such as 10% of a longer text being more-or-less the maximum that should be copied. Please see Circular 21, page 6, for more information.
How many copies of one item can I put on reserve?
For articles, book chapters, et cetera, one copy per class or section should be the limit on reserve.
Where is the form to request items be put on reserve?
Download a Course Reserve Form that you can print, fill out, and turn in to the library.
Can I place the same copied article(s) or book chapter(s) on reserve for more than one semester?
Yes. But consider purchasing the book or journal (or ask the library to consider the purchase). The four factors of Fair Use do not explicitly forbid repeated use, yet repeated use as a course reserve item does preclude any sales of a particular item and therefore does have a negative impact on the market (sales) of a particular item. (Factor (4))
Can I show a library DVD or Video during a meeting or some other event?
No. Only face-to-face presentation in a classroom instructional setting is allowed without seeking permission from the copyright holder.
Can I put a DVD, Video, CD on Course Reserve?
Yes. But it has to be the original. Copies or recordings made from television, radio, et cetera have very restricted Fair Use uses, so the library prefers just to deal with originals.
Can I put a copy (i.e. non-original) of a DVD, Video, or CD on Course Reserve?
No, see the above answer for more details.
Can I download an article (e.g. PDF) from a library database and share that with students via Blackboard(tm) or another method?
Depends. First, any use of material from a particular database must respect the license agreement for that database. Second, Fair Use requires that access be limited to valid students and that access must be of a limited duration. Ultimately, the best practice seems to be providing citations to specific articles and informing students where to search or creating direct links to articles within databases. Current authentication methods into library databases do not allow direct links to work off campus, so either provide students with a citation or post a file (e.g. PDF) to Blackboard where only current students can retrieve it and do not leave it up for more than necessary.
Can I copy the first couple chapters of a class textbook and distribute them in class if the bookstore won't get the textbook until a couple of weeks into the semester?
Yes. But the scope of the copies cannot impact the sales of the textbook once it arrives.
What is the TEACH Act?/What about distance education?
The Technology, Education and Copyright Harmonization (TEACH) Act of 2002 redefines what is permissible in distance education regarding copyright, fair use, and permission requests and royalties (or the lack thereof). The requirements are strict and it has to be enacted at the university-level. Most instructors still look to the concept of Fair Use when considering textual materials for distance education purposes. Section 110 of U.S. Copyright Law establishes exemptions for audio and moving image display and performance in a face-to-face classroom setting; a distance classroom setting is different and audio and moving image display and performance would not be permissable outside of the TEACH Act.
I'm a student, so whatever I copy for my classes and assignments is educational and fair use, right?
Not always. The four factors of Fair Use must always be examined, even if you're a student. Take a look at the Fair Use section. You need to be concerned about: Why you are copying/using something? What is it you are copying/using? How much you are copying/using? Will this have any negative impact on the originals' market value or sales?
Can I photocopy an entire textbook?
No. This would not be in agreement with the 3rd factor of Fair Use.
If I find textbooks, videos, and music freely available on the Internet, can I download them for educational purposes?
No, most likely. Copyright applies to digital formats as well as print. If something that usually costs money is available for free online, it is most likely being shared online illegally. You can get to research and newspaper articles online through library databases, but that access is different because the library pays subscription fees to access these databases. Not sure about something? Just ask! Click here to see the many ways you can contact us.
Can I share links to journal articles or other resources?
Yes. Sharing links is okay, as long as you are not pointing someone in the direction of something illegal. Have a question about something? Just ask! Click here to see the many ways you can contact us.
Can I use photographs or music in a class presentation?
Yes. Section 110 of U.S. Copyright Law establishes your ability to perform and display copyrighted works for classroom (i.e. educational) purposes.
Can I save or email myself articles I find in library databases?
Yes. You are allowed to keep copies of copyrighted materials for educational and personal research purposes.
Know Your Copy Rights Association of Research Libraries brochure for Faculty and Teaching Assistants
The contents of this page are offered as an informational resource only. The examples, explanations, and links are meant to offer help in the use of copyrighted works available through Jacksonville University’s Carl S. Swisher Library. The contents of this page are not intended to be legal advice.