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Copyright & Fair Use: Home

A guide for Faculty and Staff

Copyright and Fair Use

Copyright is the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

Copyright exists even if you don't claim it--any thing you create is yours and cannot be sold or reproduced without your permission. That also means that if you are using someone else's creation, you could be violating their copyright. So how do you claim your rights as a creator, or figure out how to use materials responsibly?

This guide will help to answer those questions.

Understanding Copyright

A Word About Copyright: It's a Balancing Act!

Copyright owners have many rights, but what about users? What rights do users have to access and use a copyright owner’s work? Congress recognized that in order to improve our society through the advancement of knowledge, the public would need to access and use those works. To that end, Congress imposed specific limitations to the rights of copyright owners and included them in the Copyright Act of 1976. This mix of rights and limitations attempts to create balance in copyright. 

There are several reasons to pay attention to copyright:

  • UHD Policy Statement 01.A.11 strictly prohibts the “reproduction of published works, printed material, or non print instructional media such as videocassettes in violation of copyright laws.”
  • As the University of Texas System Copyright Crash Course notes, recent court cases seem to indicate that state universities cannot be sued for damages for copyright violation in federal court, but you can be sued as an individual.
  • Damages can be as high as $150,000 per act of willful infringement as per 17 U.S.C. Section 101 Section 504(c)(2). On the other hand, if you followed fair use doctrine in good faith, the court might award no damages, even if the use is found to be infringing.

COPYRIGHT EXEMPTIONS

Copyright law includes exemptions that limit the rights of the copyright holder. Sections 107 through 122 of copyright law spell out limitations to the copyright holder’s rights. Here are a few important copyright exemptions for educators:

 Section   Stated Limitations
107 Permits the “fair use” of an owner’s work without permission – for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research.” This exemption outlines four factors that must be met in order to argue a fair use.
108 Permits a library or archives to reproduce works for archiving purposes, to make copies for patrons and to participate in interlibrary loan – all without permission
109 Permits individuals to lend, give or sell copies of works they own without seeking permission of the copyright holder. This is also referred to as the First Sale Doctrine.
110 Permits displays of work and educational performances in face-to-face teaching and distance education. The TEACH Act expands upon the limitations in section 110.
121 Permits reproduction of works without permission of the copyright holder for the blind and other people with disabilities.

Copyright Resources

Learn more about copyright from these resources:

Understanding Fair Use

SECTION 107: THE FAIR-USE STATUTE

Fair use allows you to use copyrighted works for the purpose of teaching, learning and scholarship without obtaining permission, signing a license or paying a fee. Unfortunately, determining whether or not a use is “fair” is hardly a straightforward process.

There is no specific law on what is or is not "fair" use. To help people determine whether the use of a work in any particular case is “fair” the Fair-Use Statute provides four factors that must be considered for each use of a copyrighted work. All four factors must be taken into account before reaching a conclusion. The following is a very brief outline of the four fair use factors, presented as questions:

1. What am I using this material for?
This factor examines the “purpose and character” of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. In general, Congress favors nonprofit educational uses of copyrighted works over commercial uses of copyrighted works. It is often noted that fair use is not a blanket exemption for educators. Just because you are using the material for educational purposes does not mean the use is fair. Each use must be analyzed and argued according to all four factors.

2. Is the work published or unpublished?
In general, it is believed that fair use favors the use of published works over unpublished works. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of the work.

3. How much of this work am I using?
This is often described as the “less is more” factor. This factor examines the “amount and substantiality” of the portion used in relation to the copyrighted work as a whole. No exact measures of allowable quantity exist in the law, however, fair use favors small quantities or amounts necessary to meet the educational objectives. The more you use of a given work, the more you should be prepared to argue that the amount used was critical to your educational objective.

4. Am I using this resource for free when I should be paying for it? 
The “effect on the market factor” is often viewed as the most complicated of the fair use factors. Exactly what is the market and potential market in each circumstance may be difficult to assess. Photocopying an article from a journal may not be viewed as having an adverse effect on the publisher’s market but copying the entire issue may (the publisher could argue that you should have purchased a reprint of the entire issue rather than copying one for free). Ask yourself, does your use deprive the copyright holder of income?

There are many “fair use checklists” available on the Internet that can guide you in your determination of whether or not a use is fair. An excellent fair use evaluator is available from the American Library Association at the following URL:http://libguides.ala.org/copyright/fairuse.

Fair Use Resources