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Copyright and Fair Use

This guide is designed to provide basic, general information about copyright, and does not constitute legal advice.

Fair Use Factors

Fair use is a doctrine under copyright law that permits certain uses of a work without the copyright holder’s permission.  The fair use of a copyrighted work is an exception to the exclusive rights of a copyright holder. Fair use may be made of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  However, the use of a work for one of these purpose does not automatically qualify as a fair use: a nuanced analysis weighing four factors must be done for each factual scenario.

Fair Use Factors

The copyright statute states that the following four factors must be evaluated to determine in whether a use is fair:

  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.

    Fair use is a flexible balancing test that is difficult to define apart from the specific factual circumstances in which it has been applied by courts.  Be wary of fair use “scales” that attempt to assign a weight to each factor to be weighed against the others; the doctrine requires determining fairness on the whole in the particular context.

What Can You Do with Fair Use?

What Can You Do?

In the teaching context, it may be useful to take the following steps to help qualify a use as fair and protect yourself and the University from infringement liability:

  • When using third party material, perform a fair use analysis in good faith;
  • Copy as little of the material as you can and still make the use you need;
  • In an on-line setting, first check to see if the University Libraries has a license to the material; you may be able to point students to the material in an accessible database;
  • Consider placing material in a password-protected environment that is available only to those enrolled in the class and terminate the students’ access to the material when class is over;
  • Link to the material instead of copying it whenever possible;
  • If the use cannot be considered fair, ask the copyright holder for permission to use it.

Classroom exceptions may apply and allow your use.

Protected Content: Fair Use (Segment)

Academic Resources on Fair Use

Fair(y) Use Tale

Remix Culture

"There is a ton of new creativity in the user generated space, and much of it builds on unauthorized uses of copyrighted material."

At the end of this video, the question is asked: "What's fair?"

Cover Yourself: Tools to Use

Use these important tools to cover yourself and document that you used good faith judgment in the event of a copyright challenge.

Learning Management Systems and Fair Use

Posting an item to the learning management system (LMS) does not exempt an instructor from copyright regulations. 

 Item

Allowed

Not Allowed

Web site containing copyrighted material

Link to the Web site via the LMS

Copying and pasting the information into the LMS 

Copyrighted Web image

Must be educational in nature; display in the LMS for one semester

Repeated use over multiple semesters

Article from a library database

Direct linking to article allowed

Copying and pasting the article into the LMS

Article, book, book chapter, or DVD obtained through interlibrary loan or otherwise borrowed from another library

Permission must be obtained

Permission denied or not obtained

Scanned copyrighted image

Must be educational in nature; display in the LMS for one semester

Repeated use over multiple semesters

Scanned chapter from a book

5% of the total work if in-print; 10% of the total work if out-of-print; allowed for one semester

More than the allotted percentages or repeated use over multiple semesters

Scanned article from a journal, trade publication, or magazine

A single article for one semester

Multiple articles from the same publication or repeated use over multiple semesters

Audio files

No more than thirty seconds without permission

Repeated use over multiple semesters

Video files

10% or three minutes, whichever is less

Repeated use over multiple semesters

From: Daytona State College Library

DURABLE LINKS are an alternative to posting files to an LMS such as Blackboard.  Durable links are hyperlinks to electronic resources (e.g. journal articles, books and book chapters, databases, etc.) which are available as part of the Library's online collections.  

Durable links allow faculty to connect students to required and recommended readings and do not require faculty to obtain copyright permission.

Books about the Fair Use Doctrine

ARL's Code of Best Practices for Fair Use

ARL's Code of Best Practices in Fair Use for Academic and Research Libraries

This document is the result of a collaboration between the Association of Research Libraries, the Center for Social Media (American University), and the Program on Information Justice and Intellectual Property, Washington College of Law, American University.