Copyright for Educators

The Fair Use doctrine is probably the most important exemption to copyright protections for educational settings, recognizing that certain uses of copyright-protected works do not require permission from the copyright holder (See section 107 of the U.S. Code Title 17 on Copyright). This allows many uses of copyrighted works without permission from the copyright holder for the purposes of teaching and research.

Copying of copyrighted materials for student learning and research use without written permission may occur in the following instances:

→ A single copy for your use in research or planning:

Single copies may be made of any of the following by or for professors at their individual request for scholarly research or use in teaching or preparation to teach a class:

• One chapter from a book;
• An article from a periodical, journal, or newspaper;
• A short story, short essay, or short poem, whether or not from a collective work;
• A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.

→ Multiple copies for student learning use

Multiple copies (not to exceed more than one copy per student in a course) may be made by or for the instructor teaching the course for student learning use or discussion; provided that the following three criteria are met:

• The copying meets the tests of brevity and spontaneity (as defined below).
• The copying meets the cumulative effect test (as defined below).
• Each copy includes a notice of copyright. An example is "this material may be protected by Copyright law (title 17, US Code)."

Definitions

Brevity: Either a complete article, story or essay of less than 2,500 words, (usually varies 3-8 pages depending on size of page and type) or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is greater.

Spontaneity: The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work. The moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative effect: Copying of the material is for only one course in the school in which the copies are made.

The difference between fair use and infringement is not always clear. A fair use analysis is driven by the unique facts of each use, so reasonable individuals may come to different conclusions about what is considered fair use based on the same set of criteria. The following four factors are considered to determine if a use is fair:

1. The purpose and character of the use (eg. commercial vs. educational)*
2. The nature of the copyrighted work
3. The amount and substantiality of the material used in relation to the copyrighted work as a whole (the greater the amount copied, the less likely it is fair use)
4. The effect of use on the potential market for or value of the copyrighted work

* Not all uses in an academic context are automatically considered fair use! See the Guidelines for Faculty and Instructors page of this guide for more information on restrictions for copying and use for educational purposes.

Explore some of the tools below to help determine whether the use of copyrighted works can be considered fair use:

Fair use is a legal doctrine that permits the unlicensed use of copyright-protected works in certain circumstances, such as  teaching, scholarship, and research . Section 107 of the Copyright Act provides a framework for determining whether something is a fair use.

In other words, fair use allows you to make limited copies for educational use in classes.  However:

The law doesn’t actually say how much you can copy. It’s somewhat vague, with recent precedent muddying the waters even more.

We refer instructors to the "rules" in the 1976 Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals" in House Report 94-1476.

This Agreement, between publishers and academics, is intended as a "safe harbor" for interpreting Section 107 pertaining to fair use.  Many institutions suggest these guidelines as a way to avoid the likelihood of a lawsuit.

The guidelines set requirements for "brevity" (limiting how much can be copied), "spontaneity" (requiring that there isn't enough time to get permission for use between copying and giving the copy to students), "cumulative effect" (limiting the total amount of copying).  The guidelines also say that an item cannot be used by the same instructor in a subsequent term.

**See also: U.S. Copyright Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians.

Image: Flickr: Langwitches https://flic.kr/p/6XFpiz

 Brevity:

1.  Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or (b) from a longer poem, an excerpt of not more than 250 words.
2. Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
   [Each of the numerical limits stated in "1" and "2" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
3. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
4.  "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety.  Paragraph "2" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and  containing not more than 10% of the words found in the text thereof, may be reproduced.

 Spontaneity:

    i. The copying is at the instance and inspiration of the individual teacher, and

    ii. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are
        so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect:

    i. The copying of the material is for only one course in the school in which the copies are made.

    ii. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, not
        more than three from the same collective work or periodical volume during one class term.

    iii. There shall not be more than nine instances of such multiple copying for one course during one class term.

    [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current
    news sections of other periodicals.]