'Fair use' is a legal doctrine outlining certain limitations on the exclusive rights of copyright holders. Fair use is evaluated by considering four factors, outlined in Section 107 of the Copyright Act:
When evaluating fair use, it's important to weigh each factor. The first factor, the purpose and character, generally favors nonprofit educational purposes, but does not constitute fair use by itself. The second factor, the nature of the work, relates to the work itself, and often refers to the use of factual works vs. creative works. The third factor, amount, considers how much of the work was used, and if it was a substantial amount. The Classroom Guidelines have suggested that less than 10% is fair use, but recent cases have weighed in favor of the "heart of the work," not percentage. The fourth factor, effect on the potential market, weighs the use's effect on the market for the item, including the availability of the work for purchase or licensing.
The Copyright Office has Classroom Guidelines which can be used to consider fair use, although they are not legally binding. Similarly, Columbia's Copyright Advisory Services has a Fair Use Checklist [pdf] which can be used for evaluating fair use.
If you're teaching or writing about visual media, you may have questions about what you can use and whether your use falls under an exemption such as fair use, public domain, or Creative Commons licensed work. Art Librarian Micki Harrington has a guide on copyright and visual media that covers many of these scenarios and how to include visual media in your scholarship and teaching!
Fair use is a common limitation on exclusive rights, but it is not the only one. Educators may also be familiar with the Classroom Use Exemption, sometimes called the Face-to-Face Teaching Exemption. This exemption allows for the "performance or display of a work in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction..." More simply, this allows for teachers to show an otherwise copyrighted work in class, provided that it is for teaching purposes, related to the course content, and legally acquired. Showing a purchased copy of Koyaanisqatsi in an experimental film class would fall under this exemption; showing a pirated copy of Shrek 2 likely would not.
This exemption only applies to face-to-face teaching activities, not distance learning. In 2002, Congress enacted the TEACH Act, a revision of Sections 110(2) and 112(f) that clarifies which of these rights also apply to distance learning. The TEACH Act applies to nonprofit educational institutions as well, but it further stipulates that those institutions must institute copyright policies and provide information and notifications about copyright. The material must be comparable in length to that which would be shown in a live classroom setting, and it does not permit the conversion of analog format into digital, except when no digital version is available. The TEACH Act created new opportunities to show copyrighted material in distance learning environments, but it comes with a long list of stipulations. The University of Texas Libraries has a checklist to determine if those conditions are met.
Since there are no definite guidelines for fair use, it can be helpful to look at court cases that have already been decided. Stanford University Libraries maintains a list of fair use case summaries for noteworthy cases. The U.S. Copyright Office also maintains a Fair Use Index for decided cases.
Some fair use cases relevant to higher education, such as that of selling coursepacks for commercial purposes, have been decided by multiple courts. In 1991, the New York Southern District Court ruled against a fair use claim in Basic Books, Inc. v. Kinko's Graphics Corp because substantial portions had been copied for commercial purposes. In 1996, the U.S. Court of Appeals for the Sixth Circut ruled against fair use in a similar case, Princeton University Press v. Michigan Document Services, Inc, and again in 2009, with the District Court of the Eastern District of Michigan ruling against fair use in Blackwell Publishing, Inc. v. Excel Research Group, LLC.
Other cases, such as that of electronic reserves, are still working their way through the courts. In 2008,, Cambridge University Press, Oxford University Press, and Sage (funded as much as 50% by the Copyright Clearance Center and the Association of American Publishers) filed suit against Georgia State University, alleging that materials used in Georgia State University electronic course reserves exceeded the amount allowed under fair use. A 2012 ruling found that the policy had been a good faith interpretation of fair use. After a series of appeals, a recent decision by the 11th Circuit [pdf] remanded the case back to District Court and instructed the Court to evaluate fair use holistically, not with a strict mathematical approach.
Sherrill Library | Lesley University, Brattle Campus | 89 Brattle Street - Cambridge, MA 02138 | 617-349-8850
John & Carol Moriarty Library | Lesley University, Porter Campus | 1801 Massachusetts Avenue - Cambridge, MA 02140 | 617-349-8070