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Fair Use is legal code written into the United States law to provide a balance (under certain conditions) to a copyright holders exclusive rights. It is based upon a four-factor analysis of a proposed use of a copyrighted work.  ¹ú²ú×ÔÅÄ subscribes to the ¹ú²ú×ÔÅÄ Fair Use checklist as a tool for helping to determine if a proposed use would be in compliance or an infringement of copyright law. The Fair Use statute notes some specific instances where Fair Use may be favored, such as parody, commentary, criticism, news reporting, teaching, scholarship, and research.

The USG provides specific guidance in addressing how faculty may use copyrighted content in an online environment. The following information is adapted from the USG policy on Fair Use.

Fair Use Exception

The determination of whether a use of a copyrighted work is within fair use depends upon making a reasoned and balanced application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act.

Those factors are

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

An excerpt of a copyrighted work may be made and/or distributed according to the following guidelines:

• The excerpt is made and/or distributed by the faculty, without charge, for teaching (including multiple copies for classroom use) or scholarship; and
• the excerpt is to be used for a non-commercial, nonprofit educational use; and
• the excerpt fulfills a demonstrated legitimate purpose in the course curriculum and is narrowly-tailored to accomplish that purpose; and
• the excerpt does not constitute the “heart of the work”; and
• the excerpt constitutes a decidedly small portion of the work in accordance with the following criteria:
  • If the excerpt is from a work that is not divided into chapters or contains fewer than ten chapters, the excerpt does not exceed ten (10) percent of the pages in the work as a whole; or
  • If the excerpt is from a work that contains ten or more chapters, the excerpt does not exceed one (1) chapter; or
  • If, after consulting the copyright owner (often the publisher) or its authorized agent (such as the Copyright Clearance Center), it is determined that the excerpt is not readily available for digital academic use at a reasonable price; and
• the excerpt is not from works intended to be “consumable” in the course of study or of teaching, including workbooks, exercises, standardized tests and test booklets and answer sheets; and
• the excerpt may be accessed only by students currently enrolled in the relevant course only during the academic term in which the course is offered; and
• a notice is provided with the excerpt to remind students of the limitations of the copyright laws and to prohibit the distribution of the excerpt to others, which is also a requirement of the TEACH Act.

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This legislation, the Technology, Education and Copyright Harmonization Act (TEACH Act), sets forth guidelines for providing online access to materials, which are performed or displayed.  It does not, however, cover making textual materials available to students.

This act “covers distance education as well as face-to-face teaching which has an online, web-enhanced, transmitted or broadcast component.”

The TEACH Act Requirements and Posting Content in D2L

The TEACH Act has specific requirements which include, as noted below, a standard copyright notice to be in place in course sites and specific guidelines for performance and display of electronic materials.

Copyright Notice

Faculty must place the following notice prominently within each course site:

Performance and Display of Copyrighted Works

The following guidelines apply to the performance or display of electronic materials placed within courseware maintained by the institution.

The work performed or displayed MUST BE:

• An integral part of the class session as determined by instructor
• Part of a systematic mediated instructional activity
• Directly related and of material assistance to the content of the course

The work performed or displayed MUST NOT BE:

• Part of a work marketed specifically for online educational
• Already available through alternative sources in a digital format
• Unlawfully or suspected unlawfully made copies of works covered by U.S. copyright law
• Over the limits permitted as a fair use

Time Limits

Copyrighted electronic materials should be available for a prescribed time period only, normally a single class session. This can be achieved through control of the content via password or time limits applied to the internal hyperlinks or folder access.

Amounts Displayed

Copyrighted works such as graphics, photographs, short poems, etc., in the online classroom must be comparable to that typically displayed in a face-to-face classroom.

Amounts Performed

How much of a copyrighted work may be performed without obtaining a license to do so depends on the type of work. The following amounts may be performed:

• Entire nondramatic literary and musical works
• Other works such as audiovisual works and motion pictures – only a limited and reasonable portion may be performed.
• No portion of a work produced solely for use in online instruction

Download Controls

Reasonable measures must be taken to prevent retention and / or dissemination of electronic works for longer than the prescribed time period, generally a single class session. Copyrighted images and graphics should be made available in a format limiting printing and saving controls. Copyrighted electronic materials such as video and audio should be streamed to avoid the downloading and saving of the file.

No Grandfathering Clause for Content Use