The "fair use" exception to copyright law allows non-owners of copyrighted work to copy and use another's work for educational, research or non-profit purposes in limited instances without the permission of the copyright owner.
What's all the fuss about fair use? Isn't there a blanket exception under copyright law for the use of copyrighted materials in an educational setting?
No: There is no blanket exception under copyright law for educational institutions or educational uses. Although many educational uses fall within the fair use exception, the mere fact that students, professors or researchers plan to use copyrighted works in an educational setting does not, in itself, exempt them from liability under copyright law. In determining whether a planned use qualifies as a "fair use", the following four factors must be evaluated:
- The purpose for which the work is used (non-profit, teaching and research uses generally are allowed, whereas commercial uses generally are not);
- The nature or characteristics of the work (the use of published or non-fiction works generally is favored over the use of unpublished or fictional/highly creative works, for example);
- The amount and substantiality of the work used (which includes an evaluation of the quality and the quantity of the work you want to use, so be wary of using large portions of a work or portions of the work that are considered key or central to the work); and
- The effect of the use on the marketability or value of the work. (If the use negatively affects the sale or value of the work, it is rarely allowed, so it is important to limit the number of copies and to not engage in repeated or long term use of the work without obtaining permission.)
How am I supposed to know if I have applied the four factors correctly? Aren't there any hard-and-fast rules to follow when evaluating fair use?
Applying the four factors can be difficult, especially when you are trying to determine how much of the work you can use or whether your planned use will affect the work's marketability or value. Unfortunately, copyright law does not provide hard-and-fast rules. (The four factors are intended to be flexible so they can be applied to all the different types of potentially copyrightable works.)
That having been said, it generally is acceptable for educators to engage in limited copying and use of another's work. For instance, it generally is appropriate for educators to make single copies of any of the following for use in their research and teaching: a chapter from a book; a newspaper or journal article; a short story, essay or poem; a cartoon, picture, chart or diagram.
Are there any instances in which educators may copy and distribute copyrighted works to their students?
Yes, but those instances are limited. Three considerations help guide educators in determining whether and when they may copy another's copyrighted work for their students: brevity, spontaneity and cumulative effect.
- Brevity: relates to how much of the work is being used. Is it a single poem from an anthology? Is it a single drawing or diagram from a work containing many drawings and diagrams? Is it a portion of a lengthy research article? Short or partial works generally satisfy the brevity requirement. In addition, complete copies of some works (poems, stories and children's books, for example) may also satisfy the brevity consideration, provided they are not too lengthy.
- Spontaneity: relates to the timing of the decision to use a work. It is not unusual for educators to discover works they would like to share with their students while a course is ongoing. In such instances, there often is not adequate time to obtain permission to use the work from the copyright owner. The use of the work in such situations generally satisfies the spontaneity consideration.
- Cumulative effect: is more of a "big picture" consideration. It requires an evaluation of how much material is being provided without the copyright owners' permission and how much use is being made of the material before permission is finally obtained. For instance, although the brevity consideration above may allow for the copying of a poem or story for distribution in class, cumulative effect would prohibit the distribution of more than one poem or story by the same author or the distribution of several poems or stories by several authors (which begins to resemble a course pack). Similarly, although the spontaneity consideration above may allow for the copying of a journal article for distribution to this term's students, the same article may not be distributed in successive terms without permission. Please also see the FAQ Permissions for further information in obtaining permissions.
What about copying library materials? Is that governed by fair use?
Libraries are bound by the fair use doctrine, too, although individuals are responsible for the copying they do on library premises. Thus, students and educators must consider the four fair use factors described above when copying library resources. This is true whether the resources are print resources (such as texts, periodicals or recordings) or electronic resources (such as CD-ROMs, on-line databases or other multi-media works). Keep in mind, however, that the use of some library materials may be controlled by licensing agreements, in which case the agreement should be reviewed to determine what uses it permits.
Does fair use apply to the Internet?
Yes. Despite the fact that they are so readily available to so many people, materials on the Internet are protected by copyright, too, and the fair use restrictions for the use of Internet materials are no different than for other materials. As with other materials, downloading single copies of works found on the Internet for your own personal use is likely to be considered a fair use.
Doesn't the TEACH Act eliminate the need for a fair use analysis with regard to distance education?
No. The TEACH Act, the recent distance education update to the performance and display restrictions in copyright law, is not intended to limit or change the scope of fair use. In fact, fair use will continue to play a role in distance learning because it applies to the many distance education transmissions not covered by the TEACH Act. (Access MnSCU's , Frequently Asked Questions about the TEACH Act.)
Does MnSCU provide any guidelines relating to the use and reproduction of copyrighted works for educational purposes for its faculty, students and staff?
Yes, the system office has adopted a number of guidelines for its faculty, students and staff, all of which can be accessed via the links below. The guidelines are intended to be conservative, so additional uses not described in the guidelines may also constitute fair use. Individuals with questions relating to whether a particular use constitutes fair use may also consult with their campus Intellectual Property Coordinators.