When considering whether your use of an item falls into “fair use” or is copyright infringement, consider the following:
- Purpose of the Use – teaching, research, commentary, criticism, and parody fall under fair use. Generally, the use of works for educational purposes (vs. commercial purposes) are favored.
- Amount Used – consider what you want to use in relation to the work as a whole. Copying an entire textbook would be copyright infringement, whereas copying several paragraphs or one chapter might be considered fair use.
- Nature of the Publication – use of factual works are favored over creative works; published works are favored over unpublished works.
- Effect on the Market – generally, your use of the work should not impact its use on the market, or its overall profitability.
According to Justice Souter, writing on behalf of the United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. 92-1292, a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” When considering transformative use in relation to the 4 general criteria listed above, ask the following:
- Does the use transform the material by using it for an entirely different purpose?
- Was the amount of copyrighted material used appropriately in achieving that purpose?
Examples of Fair Use
- summarizing and quoting from breaking medical research in a news article
- quoting a few lines from a Beyoncé song in a music review
- a teacher copying a few paragraphs from a book to use in a lesson
- an artist parodying Barbie and her values by photographing naked Barbie dolls, in various levels of disarray, inside or near kitchen appliances (Mattel Inc. v. Walking Mountain Prods.)
Fair Use in the Classroom
While many things educational faculty do may fall under Fair Use, being an educator does not automatically grant you permission to copy or use someone else’s work. Any time you include copyrighted materials in a presentation, on Laulima, in handouts, or in your writing, you should be evaluating whether your use is considered “fair.”
Generally speaking, instructors are granted more flexibility when using copyrighted materials in face-to-face instruction. You may show or play a copyrighted work in your class, without obtaining the copyright holder’s permission, if it meets all 3 of the criteria below:
- it is used at a non-profit educational institution
- it is used for instructional purposes
- it is used in face-to-face (not online) teaching
Examples of face-to-face fair use scenarios:
- playing a song during class
- adding images to your lecture slides
- showing a movie during class
Use your best judgment, after reviewing the guidelines above, when posting copyrighted materials into a class site on Laulima or sharing them digitally via other methods with your students.
If the materials can be found elsewhere on the Internet, or if the Library has access to it through its subscriptions, you should have students access it through the link, itself. Linking to a resource is not the same as making a copy of a resource (i.e. linking is preferable, especially if you are trying to share copyrighted material).
Additionally, you should review the Technology, Education, and Copyright Harmonization (TEACH) Act that went into effect in 2002, which clarifies and expands the rights of educators to use copyrighted works for distance education purposes.
Reproduction for Classroom Use
The guidelines for the copying of copyrighted work for classroom uses is outlined in the United States Copyright Office’s Circular 21, entitled the Reproduction of Copyrighted Works by Educators and Librarians.
Single Copy – Instructor
In preparation of teaching a class, an instructor can make a single copy of the following for his or her individual use:
A chapter from a book
An article from a periodical (e.g. newspaper, magazine, scholarly journal, etc.)
A short story, short essay or short poem (whether or not it’s from a collective work)
A chart, graph, diagram, drawing, cartoon or picture (if it’s from a book, periodical, or newspaper)
Multiple Copies – for Use by Class
- It meets the tests of brevity and spontaneity
- To view the definitions for brevity and spontaneity, view page 6 of the United States Copyright Office’s Circular 21
- It meets the cumulative effect test
- To view a definition of the cumulative effect test, view page 7 of the United States Copyright Office’s Circular 21
- Each copy includes a notice of copyright