Copyright and Fair Use

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.

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   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?

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.

"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?"

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

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

From: Daytona State College Library