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Determining Fair Use:

This checklist may help you determine how you can use your materials in a class.

Completing one of the following forms may help you make a Fair Use determination about your materials if necessary:

Either of these forms can be printed and retained as documentation of the process you employed to make your decision. This "good faith" documentation could be useful in case of a copyright infringement charge.

Copyright Basics: Fair Use and the Classroom

While fair use exceptions to the copyright law exist for purposes of "transformative use" (e.g. commentary and criticism or parody), this page is primarily concerned with fair use in a classroom setting. Use of copyrighted material in the classroom generally falls under two different areas: displaying material or making copies of that material.

Displaying copyrighted material in the classroom

This would include showing movies, playing audio recordings, and displaying visual or textual materials (in slides, for example) to an entire class in a face-to-face setting.

In general, this does not pose a problem under copyright law as long as:

  • The materials were legally obtained (no bootleg copies, etc.)
  • The material is being displayed by a teacher or student:
    • In a physical classroom
    • For an educational purpose (not for entertainment purposes)
    • At a nonprofit educational or governmental institution

Material used in this way is generally exempt from public performance restrictions, etc., and permission to display the materials is generally not required.

Distributing and using copies of copyrighted material

The problems begin when you want to make and/or distribute copies of copyrighted material. Unfortunately, displaying material (as in Section 1) for an online class by definition involves making copies of that material.

There are essentially two ways you can legally distribute and use copies of copyrighted material in a face-to-face classroom setting:

  • You can get the copyright owner(s); permission (i.e. obtain a license). On our campus, the UNCG Bookstore will perform this service free of charge for faculty.
  • You can argue that the copying qualifies under the fair use exception to the copyright law.  That exception allows copying for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," IF (and this is a very big IF) such use can be considered "fair" when analyzed using the following four factors:
    1. Tthe 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
    4. The effect of the use upon the potential market for or value of the copyrighted work
    Of these four factors, (3) and (4) seem to get the most emphasis by the courts, especially the market impact factor. Small amounts of spontaneous copying for classroom use (not including whole articles or book chapters) are probably OK, although coursepacks containing whole book chapters and significant portions of articles have been held to violate the copyright law.

Again, it is important to remember that posting materials on the internet is a form of copying and makes them available to a vastly larger audience, which will increase the adverse market impact exponentially, i.e., don't do it without the owner's permission. If you need to post materials as part of an online class, there may be justification under the TEACH Act, which permits some limited use analogous to what would take place in a physical classroom.

As you can see, determining in advance what will qualify as a fair use is, at best, an exercise in uncertainty. Because each case is so fact specific, case precedent has little predictive value. The analysis of the four factors tends to be very subjective. Thus, in the event of a legal challenge, it will come down to what a particular judge thinks. This, unfortunately, is why the answer to so many copyright and fair use questions is "it depends."

More information

In an effort to provide some guidance to faculty and staff on this issue, the UNC Office of the President has created a Primer on Copyright Ownership and Use which includes a fair use worksheet. Use of this worksheet before using copyrighted material without permission will help document the good faith effort in case of litigation.

-- Adapted from UNCG Office of the General Counsel Website and other sources

 

Disclaimer: This site presents copyright guidelines and resources but should not be considered legal advice.