The Fair Use Doctrine is a part of the copyright law that mitigates the rights of the copyright holder to permit appropriate usage for educational purposes. Fair Use is the use, including copying, of copyrighted material, without the holder’s permission, for certain purposes. Those purposes include teaching, preparation for teaching, scholarship, research, and news reporting. The nature of fair use is ambiguous; the legal definition of fair use is only a set of guidelines. It does not articulate for educators and scholars explicit rules or THE exact measures. Compliance with fair use guidelines is the responsibility of anyone involved in the creation, reproduction or distribution of such products used in educational activities for the institution. To determine if your “use” (copying, performing, etc.) of a copyrighted work is legitimate, consider all four of the following factors:
- The purpose and character of the use – e.g., nonprofit, educational
- The nature of the original copyrighted work, especially whether
it is creative (like a novel), or factual (like news reporting). Creative works generally are more protected.
- The amount, substantiality, or portion used in relation to the work as a whole.
- The effect of the use on the potential market value of the work.
Wheaton College has defined guidelines for fair use in the following categories:
- copying for personal use
- copying for classroom use
- copying for reserve use
- the use of multimedia
- the use of computer/internet material
- interlibrary loan requests for copies
- writing with expired copyright may be reproduced
- most U.S. Government publications may be copied
- when duplication amounts to a “fair use” of the material
- most single-copy reproductions for one’s personal use.
Number of copies (article or book chapter) permitted:
Multiple copies can only be made if the following conditions are also met:
- Brevity. That is, the work is only one short poem or less than 250 words of a longer poem;one complete article, story or essay of less that 2,500 words or less than 10% of a larger work of prose;or a single chart, graph, cartoon, picture, etc.
- Spontaneity. The inspiration and decision to use the work are so close in time that it would be unreasonable to expect a timely reply to a request for permission to make multiple copies.
- Cumulative Effect. This basically means that the copying of this one work is not a part of a larger amount of multiple copying, especially of works of one author or from one volume.
- Copyright notice. Each copy includes a notice of copyright.
A teacher may make one copy, for each student, of a chapter from a book; a periodical/newspaper article; a short story, essay or poem; a chart, graph, diagram, cartoon, and a picture from a book, periodical or newspaper. This is permitted if:
- There is only one copy for each student;
- The material includes a copyright notice on the first page;
- The students are not charged a fee beyond the actual cost of copying
— Creating anthologies of photocopied materials:
Guidelines prepared by author and publisher do not permit this unless copyright permission is granted. They state, “Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works.” Several court cases have upheld this principle, including cases against New York University, University of Texas, Kinko’s and Michigan Document Services, Inc.
The copying of workbooks, exercises, standardized tests, test booklets and answer sheets and like consumable material is not permitted.
A music instructor can make copies of excerpts of sheet music or other printed works, provided that the excerpts do not constitute a “performable unit” such as a whole song, section, movement or aria.
Educators may use print, images, Internet sites, motion picture media and sound recordings – in both analog and digital formats. A digital copy is the same as a hard copy in terms of fair use.
If a use is fair, the source of the content in question may be a recorded broadcast, a borrowed piece of media, a rented movie, or a teacher’s personal copy of a newspaper or a DVD. Labels on commercial media products stating that they are “licensed for home (or private or educational or noncommercial) use only” do not affect the instructor’s right to make fair use of the contents.
Fair use rights extend to the portions of copyrighted works that are considered necessary to achieve educational goals – and at times even to small or short works in their entirety. The fairness of a use depends, in part, on whether the user took more than was needed to achieve his or her legitimate purpose. Material selected should be pertinent to the project or topic, using only what is required for the educational purpose for which it is being made. There are no cut-and-dried rules that can be relied upon in making this determination (such as 10 percent of the work being quoted or 400 words of text, etc.).
Fair use is situational, context is important. Transformativeness, of significant consequence in fair use law, can entail revising material or putting material in a new context, or both. Educational uses that add significant academic value to referenced media objects will often be considered fair. In all cases, educators should provide proper attribution. Furthermore, when material is accessible in digital formats there should be security against third-party access and downloads.
- Copyrighted material may be employed in media lessons: Under fair use, teachers can select instructive material from copyrighted sources and make them available to students, in class, workshops, informal mentoring and instructional settings, and on school-related Web sites.
- Copyrighted material may be used to prepare curriculum materials: Educators can integrate copyrighted material into curriculum materials including books, workbooks, podcasts, DVD compilations, videos, and Web sites.
- Sharing media curriculum materials: Teachers should be able to share effective examples of instruction, including resource materials and lessons. If curriculum developers are utilizing fair use when they produce materials, then their work should be seen and used — given that fair use applies to commercial materials as well.
- Student use of copyrighted materials in their own academic and creative work: Learners are free to include, revise, and re-present existing media objects in their own classroom assignments. Students’ use of copyrighted material should not be a substitute for creative endeavors. Their use of a copyrighted work should alter or repurpose the original. Material included under fair use should be credited.
- Developing audiences for student work: Sharing students’ work through the Internet, restricted to the college network, is apt to be considered fair use. But to distribute their work more broadly to the public or to incorporate it as portion of a personal portfolio, permission should be sought.
A single recording of a performance of copyrighted music may be made by a student for evaluation or rehearsal purposes, and the educational institution or individual teacher may keep a copy. In addition, a single copy of a sound recording owned by an educational institution or an individual teacher (such as a tape, disc or cassette) or copyrighted music may be made for the purpose of constructing aural exercises or examinations, and the educational institution or individual teacher can keep a copy. Students and educators may use copyrighted music for a variety of purposes, but cannot rely on fair use when their goal is to establish a mood, or when they make use of popular songs just to take advantage of their popularity.
Public television program
Non-profit educational institutions may record television programs at the request of a teacher. The tape may not be altered in any way. The tape may be shown only in a place devoted to instruction. A tape may be shown to several classes if appropriate.
Purchasing or renting from a local video store for use in class:
Ownership of a copy of a film or video does not confer the right to show the work. The performance right of a license contains certain restrictions that should be followed. However, the use of these tapes — which are generally licensed for “Home Use Only” — is considered a fair use in a face-to-face teaching situation. A face-to-face teaching situation implies a classroom setting with only the instructor and students present. Furthermore, the activity must be a part of the established curriculum. It does not extend to showing tapes for entertainment or to students or others not in the class.
Copying a rental video for later use:
This would clearly infringe on both the copyright and the license granted to the rental store.
Copying a college-owned video for Course Reserve:
A duplicate copy can be made only after permission to copy has been obtained from the copyright holder. In some cases it may be easier simply to purchase a second copy.
Showing a video to a group or club outside of the classroom:
Some film and video distributors will offer the rental or purchase of videos with “public performance rights” for a higher fee. The public performance right is what is needed to show a video in a non-teaching situation. Most of the instructional videos in the Library’s collection have been purchased with the necessary public performance rights.
Showing a rental video in a residence hall lounge:
Although experts disagree, this usage is clearly not a classroom situation, but some say it is comparable to home or private use and therefore legitimate. Others say that the somewhat public nature of a residence hall lounge would make this a public performance. If the group of people viewing the video is restricted to acquaintances of the student renter, it is probably okay. If the showing is publicized and/or shown with an “anyone welcome” attitude, it is probably not a legitimate use.
Copying a preview video before its return to the vendor or distributor:
Preview videos may not be copied. However, the Library Acquisitions office may be able to arrange an extension of the preview period.
Copying a video (no longer available for acquisition) for preservation purposes:
Permission to copy a video title in the Library’s collection must still be obtained from the copyright holder even if the video is no longer available for acquisition.
Copyright protection for World Wide Web pages:
Copyright Law applies to materials found on the Internet to the same extent it applies to material in traditional formats. The stylistic and content elements of a web page and the overall design of a web page are protected by copyright from the moment of creation.
Internet postings and “public domain”:
Considerable controversy surrounds this concept, and copyright law certainly does not recognize the principle of implied license. Works enter the public domain only through the permission of the creator or copyright expiration.
Copying a portion of another person’s Web page:
Educators and students must credit the sources and display the copyright notice and copyright ownership information. A full bibliographic description, including: author, title, publisher, and place and date of publication must identify the source.
Using a digital image, a scanned photo or graphic illustration in a published work and placing it on your web page:
A photograph or illustration may be used in its entirety. These digital images may be displayed on the institution’s secure electronic network, to students enrolled in a course, by the educator, for classroom use. Scanning a graphic/photo that is old enough for the copyright to have expired (generally over 75 years old) or in the public domain would be permissible.
Linking to anything on the Web:
The Digital Millenium Copyright Act (PL105-304 Section 512) provides a “safe harbor” for Online Service Providers (OSP), such as libraries, stating that they will not be held liable for linking to sites. Links are a form of citation. You may make links to other Web locations on one’s own Web site. But bringing material from another site to your own site is not allowed.
Copying someone else’s list of links:
Using a few links from a list that someone else has created should not pose a problem. The creation of a large list of links is potentially copyrightable so it could only be copied in its entirety under the conditions of fair use.
Copying a newsgroup message (electronic mail, discussion lists, and Web blogs):
The author holds copyright in e-mail. Such messages are definitely copyrighted and have the same protection as any written work, but making one print copy for your own personal/educational use would most likely constitute fair use. These messages are not in the public domain.
Sharing someone else’s message in a listserv or newsgroup:
Forwarding of e-mail without permission is not permitted. This would most likely constitute unauthorized distribution unless it was a reposting of the message to the original group of people (i.e. in responding to a newsgroup, listserv or regular email message).
Online course readings:
There are three means to place a course reading online: electronic reserve, onCourse, or a Website. We have prepared guidelines for you to make an e-reserve request. If readings are placed on onCourse or your Website, first determine whether the use of the material falls within the fair use guidelines. Consult the Copyright Decision Map before seeking permission. If in the analysis, it has been determined that permission is needed then it is the responsibility of the instructor to do so. We offer suggestions for this procedure online.
Transfers from analog to digital formats are allowed if:
- The digital format is not available;
- Only the necessary portion is copied;
- The digitized copy is not shared with other institutions;
- Digital copies are not made of the digital copies.
Computer programs (software):
- The library may loan one, licensed copy of a program, to which the required copyright warning is affixed, for non-profit use. But the patron may not keep a copy of the program installed on her computer.
- The library may loan a copy of application software, which was purchased for a non-profit purpose, if the required warning is affixed to the package.
- The library may make a program available, via a campus wide computer system, to the campus community, to access simultaneously, provided that the library obtains a network version of the program and a site license permitting simultaneous access.
License agreements of journals, databases, and computer programs may govern the uses of some materials. Users, libraries and educational institutions have a right to expect that the terms of licenses will not restrict fair use or other lawful library or educational uses.
The Interlibrary Loan Service includes the making and sending of copies found in books, journals and other copyrighted material. Section 108 of the Copyright Act permits this copying under certain conditions. The law allows the Library to reproduce no more than one copy and send, to another library, portions of copyrighted material, provided that the copies are not made for commercial advantage; the quantities of copied items received by the borrowing library do not substitute a periodical subscription or purchase of a work; the library’s collections are open to the public; and the copy includes a notice of copyright. Furthermore, the copy must become the property of the user; and the library has had no notice that the copy will be used for anything other than “private study, scholarship or research.” The Copyright Act does not provide explicit, quantitative guidelines for interlibrary loan, thus, the National Commission on New Technological Uses of Copyrighted Works (CONTU) developed more specific guidelines. The CONTU guidelines suggest that the borrowing library adhere to the “rule of five”, in other words, five articles per periodical for the past five calendar years and no more than five copies from a work can be made during a calendar year for other materials. Periodicals older than five years are not addressed by the CONTU guidelines, but copyright term is till in effect in this case. Requests must be accompanied by a statement that the borrowing library is complying with the CONTU guidelines. The borrowing library must keep records for three years of its activities. Wallace Library tracks patron requests and, once the guidelines are exceeded, the library pays royalty fees. Section 108 does not apply to musical works; graphic, pictorial, or sculptural works; motions pictures; or other audiovisual works, except those dealing with the news. Digital collections are managed through license agreements.
WEB RESOURCES FOR FAIR USE
- Copyright Decision Map
- Center for Social Media: Code of Best Practices in Fair Use for Media Literacy Education
This page provides the Wheaton College campus with copyright information and guidelines but it is not offered as professional legal advise.