If you have any questions about Copyright, Fair Use, the Teach Act, or just want to think through a situation involving the use of copyrighted material in an online or face-to-face class setting with a copyright law non-expert, librarian-biblical scholar, please either send an email or give a phone call to Jack Daniels - Teaching & Learning Librarian.
danielsj@flagler.edu
(o) 904-819-6330
(c) 904-806-7525
Fair Use is not a right, but it is a set of criteria to follow to ensure that, if a professor or institution is taken to court by a copyright holder, it may be demonstrated that the use of the material responds to the following two questions in a way that implies "Fair Use":
1) Was the use of the work/material transformative, i.e., did it add value to and/or repurpose the original work for a new audience?
2) Was the amount of material used appropriate to achieve a transformative purpose, that is, a specific (learning) outcome different from the purpose of the entire original work?
The two questions above are based on four factors that should be considered in evaluating "Fair Use."
17 U.S. Code 107 Limitations on Exclusive Rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Copyright Act (17 U.S. Code 110[1]) allows for educators to display (show) and perform (show or play) an other's work, regardless of medium, in a classroom.
The Teach Act (17 U.S. Code 110[2]) attempts to craft online educators' rights to make copies of performances and displays, in a way that is more in line with the rights of those teaching face-to-face. However, due to the nature of online learning that requires digital copies of works be made and posted for accessibility, such materials must be edited down, or cut into clips (audio or audiovisual) of "reasonable and limited proportions."
Section 17 U.S. Code 110[1-2] Condensed for a Flagler College Classroom
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
(2)…the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission,
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—
(i) students officially enrolled in the course for which the transmission is made; or
(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
(D) the transmitting body or institution
(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
(ii) in the case of digital transmissions—
(I) applies technological measures that reasonably prevent—
(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and
(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination…
What follows below are suggestions of how to accomplish "editing down" and/or "cutting into clips" so that the pedagogical use of copyrighted materials remains within the bounds of "Fair Use" following the the Copyright Act (17 U.S. Code 110[1]) and the Teach Act (17 U.S. Code 110[2]).
Canvas, Course Reserves, & Coursepacks
Rule of thumb: Use as little of the copyrighted material as possible to achieve a learning outcome.
For Canvas, Course Reserves, and Coursepacks, try to limit both the amount of and access to the material.
Images and Audiovisual Materials
Images and audiovisual material may be digitized and made accessible if the intended use is transformative and the amount used is appropriate for achieving a learning outcome. When the use of our institution’s own unique holdings is transformative, digitizing them for educational use likely constitutes fair use. Digitized copyrighted material that is not unique to our institution’s holdings, can be made accessible for educational purposes with limitations.
Fair Use Rules of Thumb
Because it is always best to err on the side of caution, here are suggested “rules of thumb” to use.