Teaching and Fair Use

Understanding Fair Use

According to the fair use provision of U.S. copyright law, you may not need to request permission to use another's work if your usage can reasonably be deemed as "fair." Four factors are considered when determining whether fair use applies:

The purpose and character of the use. If your use of a given work is for nonprofit educational purposes, with access restricted to only your students, fair use is more likely to apply.
The nature of the copyrighted work. Works that are fact-based, published, or out of print are more likely to qualify under fair use than other types of work.
The amount used. Fair use is more likely to apply when only a portion of the work rather than the whole work is used and when that portion does not represent the heart of the work. An electronic version of a single article from a publication or portions of a book (usually one chapter) may pass this test if the work is placed in a password-protected system like Canvas or e-reserves, if copyright restrictions are clearly stated, and if access is limited to only your students for only the duration of the term. It is strongly recommended that permission be requested if the work will be reused term after term.
The effect of the use on the potential market for the copyrighted work. Potential market effect has become one of the most critical considerations in determining fair use cases. Consider carefully whether your use of a work, or widespread use of a similar nature, would result in economic loss to the copyright holder. This fourth factor is especially relevant if the first three factors do not weigh heavily in favor of fair use.

These guidelines are not clearly defined and are highly subject to legal interpretation. It is up to you to consider the four factors as a whole and decide whether the scale tips in favor of fair use. When deciding whether to post copies of digital content in Canvas, or distribute copies in your face-to-face class, consider how your use fits into these four factors. It never hurts to document your decision-making process as a way of showing that you took careful consideration of fair use guidelines before deciding to use content without requesting permission.

The TEACH Act

The TEACH Act was passed in 2002 as an amendment to section 110 of the existing copyright law. It further defines the exceptions of copyright law for online and other distance education uses, and it defines the responsibilities of institutions and instructors to qualify for these exceptions.

The TEACH Act permits instructors to display audio/visual media in distance education settings under the following circumstances:

The performance is of a non-dramatic literary work or musical work.
The performance of any other work, such as dramatic or other audiovisual works, is only in "reasonable and limited portions." In other words, this generally excludes showing full-length movies online.
The performance of any work is "in an amount comparable to that which is typically displayed in the course of a live classroom session."
The work that is shown was not produced specifically for paid, online educational use. In other words, movies and other materials produced and marketed by educational publishers cannot be shown without obtaining a license.
If a movie is digitized to show online, the amount digitized is limited to the amount that may be displayed.
The resultant digital version of the movie is not made available to the institution outside of the course, but is secured through appropriate technological measures from being accessed by anyone other than the instructor or the students for the limited period of time in which they need to view the content.

For these exceptions to be applicable, the institution and information technology administrators must meet additional requirements:

It must be an accredited non-profit institution.
The institution must have instituted policies regarding copyright.
The institution must provide informational materials regarding copyright.
There must be a statement, visible to students, that materials within the course are subject to copyright protection
Movies and other content must only be shown to students officially enrolled in the course.
The institution must implement technological measures to prevent students from downloading and retaining the content.
Copies of movies shown cannot be made illegally by bypassing technological measures implemented to prevent copying.
Movies and other media cannot be made available to students for a longer period than is necessary.
Any digital copies of media stored long-term must not be used for further copying.

For more information on these and other restrictions, including information on the TEACH Act, the following websites are useful:

Using Copyrighted Materials in your Course

Fair Use determines how much of a work you can use in a course without obtaining copyright permissions. For books, articles, and other textual materials, fair use regulations apply whether you are using the material in a face-to-face class, on course reserves or within the course management system. Course materials posted online are subject to copyright law, even if they are posted in a password-restricted system such as Canvas.

The following guidelines are not all-inclusive, but are intended to help you make informed copyright decisions.
When considering whether you should obtain permission to distribute a copyrighted work online, it can help to consider what would be required to distribute the same content physically in a classroom. For example, if you would need copyright clearance to distribute photocopies of a written work to students in your class, you would need permission to distribute the same file online. The same concept applies to images and audio/visual media, although as a rule, further restrictions apply to displaying content, especially audio/visual content, in online settings. For more information on these restrictions, please see the section describing the TEACH Act. Before you use content of any kind in your course, be sure you know enough about the nature of the work and its copyright owner to make informed copyright decisions.

There are certain circumstances, described below, in which you may not need to permission to use someone else's work. If these circumstances do not apply to your use case, seek permission from the copyright owner before using the content.

Linking Versus Uploading a Copy

Linking to a resources is not the same as copying the content to your course. Creating a copy may have copyright implications. Whenever possible, you should link to a work rather than reproduce it. However, before you post copies of an article or audiovisual work in Canvas, you should evaluate the possibilities of linking to content rather than copying it, as well as the availability of content that is not under strict copyright limitation.

Library Licensed or Publicly Available Copies

A subscription to an article or another type of work may have already been paid for by the library, or it may be freely accessible to the public on a legitimate website. If so, you can link to the content from your course without having to worry about copyright liability. For example:

If the library subscribes to a journal in electronic format, you can link to any articles in the journal.
For print materials, the library's Course Reserves group will scan a maximum of one issue of a journal and up to one chapter of a book. It is the responsibility of the instructor to conduct a fair use analysis or obtain copyright permissions for any materials being put on course reserves or in the course management system.

Audio/Visual Media

Merrill-Cazier Library and the Center for Innovative Design & Instruction (CIDI) work in cooperation to meet the media-related needs of faculty and instructors at USU. The Library makes streaming video available through the following platforms:

For videos not available through the above resources, the following options are available:

Purchase streaming rights (Requests will be evaluated in light of available funds).
Request permission from copyright holder to digitize and stream a video (the requester or the Library must own a lawfully made physical copy of the film).
Short clips of films (defined as “reasonable and limited” portions) also may be digitized and streamed (the source must be lawfully made).

Submit a request for streaming media.

**Please submit requests a minimum of four weeks in advance.

Streaming media will be made available in Canvas only for the students enrolled in the course during the semester specified in the request.

The following items may not be digitized for streaming:

Films on rental from commercial providers such as Hastings, Netflix, or Redbox;

Content specifically produced and marketed for classroom use or distance education including ancillary textbook materials.

Please contact copyright@usu.edu with any questions.

This policy is in compliance with U.S. Copyright Act. Procedures invoke the Technology, Education and Copyright Harmonization (TEACH) Act, Section 107 (fair use), and the Digital Millennium Copyright Act (DMCA) where appropriate to authorize utilization of video in the physical and virtual classroom.

Find Creative Commons Works

A growing number of works are produced with a Creative Commons license. This type of license allows the content producer to specify how his or her content can be used, reused, and repurposed. For example, a Creative Commons license on a video may allow for non-commercial use on the condition that attribution is made to the content creator. A good starting place for finding creative commons works is http://search.creativecommons.org/. Be sure to review the license on a given work to see what the unique restrictions are.

Tap Into the Public Domain

A work that is in the public domain can be used without copyright permission. By U.S. law, a work enters the public domain 70 years after the content author has died. Also, anything produced before 1923 is in the public domain. Other public domain works include those produced by the U.S. Government or its employees as part of their jobs. This does not include works produced under a federal grant or those produced by state and local governments.

More Information

For more information, you are encouraged to follow the links below.

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