Copyright & Fair Use
Emory & Henry College acknowledges and encourages the appropriate use (i.e., reproduction, distribution, performance, and display) of copyrighted works and materials for teaching, scholarship, and research purposes consistent with federal copyright law and the standards for fair use. Reliance upon the fair use exception should be limited to those cases that clearly meet the fair use balancing test in favor of the intended use, and are carefully documented to support that conclusion.
Section 107 of the copyright law sets forth four factors to be considered, weighed, and balanced when making a determination of fair use. These four factors appear below in a format to assist in making this determination. In all cases, considerations on the left side tend to favor fair use while considerations on the right side tip the balance in favor of seeking permission. All four factors must be taken into account before reaching a conclusion.
The concept of fair use is embodied in section 107 of the copyright law. This law provides that certain limited use of copyrighted materials for such purposes as teaching, criticism, commentary, reporting, scholarship and research is not infringement of copyright. The law sets forth four factors to be considered when making a determination of fair use:
- 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
- The effect of the use upon the potential market for, or value of, the copyrighted work.
The Four Factors
PURPOSE & CHARACTER
The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
Uses on the left tend to tip the balance in favor of fair use. Commercial use tends to tip the balance in favor of seeking permission from the copyright holder. The uses in the middle, if they apply, are favorable to fair use: they add weight to the tipping force of uses on the left. * Non-Profit * Teaching * Scholarship/Research * Criticism * Commentary * Clinical/Health Care * Parody * Personal * Commercial
NATURE OF THE WORK
The nature of the copyrighted work.
Again, uses on the left tend to tip the balance in favor of fair use. In this case, uses in the middle have little effect on the balance. Uses on the right favor seeking permission. * Factual * A mixture of factual and imaginative * Imaginative * Consumable materials _(e.g., workbooks, answer sheets)_
AMOUNT & SUBSTANTIALITY
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The amount of material should be measured both quantitatively and qualitatively. Quantity should be evaluated relative to the length of the entire work and the amount needed. The reproduction of an entire work weighs against fair use. A reproduction that is relatively small, but still uses the “heart” of the work will weigh against fair use. * Small amount relative to the entire work. _(Examples might include one chapter of a book or the lesser of either 10% or 30 seconds of audio)_. * More than a small amount or the “heart” of the work. _(Examples might include an entire poem, essay, journal article or song)_.
EFFECT OF USE
The effect of the use upon the potential market for or value of the copyrighted work
Reproduction that substitutes for purchase of the original weighs heavily against fair use. This factor is closely linked to the other factors. If a use is tipping the balance in favor of fair use after the first three factors are evaluated, lost permission fees need not be considered. However, if after the first three factors, the balance is tipping toward seeking permission, potential lost permission fees must be taken into account in determining market impact. * Originals out of print or not available and I can document reasonable attempts to obtain a copy or permission to copy. * There is a market for permissions fees. * Use substitutes for purchase of the original work. * Item has been used in this course before.
These four factors are often difficult to apply and highly subjective. A proper review using these factors requires making several judgments in the course of “weighing” and “balancing” many facts. The Fair Use Analysis Guidelines contains information to help with this analysis. Faculty members, instructors or other authorized personnel should carefully review any copyrighted material to be used and determine whether they need to seek permission from the copyright owner. Unless some other exception under the copyright law clearly applies, this determination involves carefully considering the four fair use factors for each copyrighted work. Even after fair use has been determined and documented, there are other guidelines which should be followed whenever feasible, including the following:
- The number of copies should be limited to the number of students in the class or, in an electronic environment, passwords or some other authentication method to ensure should be used to ensure that only students enrolled in that class have access to the copyrighted material
- Web pages that contain copyrighted material for classroom use should be deactivated or made inaccessible when the class is over or the material no longer needed
- Duplicated, distributed, or displayed material should always include available bibliographic and copyright information
- Students should not be charged more than the actual cost of copying, producing, or otherwise making the material available
- Faculty should obtain permission for materials that they use repeatedly for the same class.
For a more complete explanation of the Emory & Henry College copyright policy, please refer to the booklet A Guide to Copyright Law at Emory & Henry College available at Kelly Library. For an official guide to copyright law, please refer to the Library of Congress Copyright Office website.
Emory & Henry College acknowledges and encourages the appropriate use (i.e., reproduction, distribution, performance and display) of copyrighted works and materials for teaching, scholarship and research purposes consistent with federal copyright law and the standards for fair use. Given both the importance of complying with federal copyright law and the difficulty of determining fair use, this document provides guidance for the use of others’ work as well as links to copyright and fair use resources.
For purposes of this policy, copyrighted works and materials include all audio visual, electronic, and printed works and materials under copyright protection. Some materials are not subject to copyright protection, including:
- Works that lack originality (e.g. the phone book)
- Most, but not all, US government works
- Ideas, procedures, concepts, principles or discoveries
- Works in the public domain, including works with copyrights that have expired.
Since a copyright notice is no longer required, the absence of the ©, especially for works published after 1978, does not necessarily mean the work is in the public domain. For additional information, please refer to:
Works that are subject to copyright protection should only be used with the permission of the copyright owner or with a documented determination of fair use or other exception to the copyright law. While fair use (section 107) is probably the most widely used exception to seeking permission for uses of copyrighted works, especially in the college environment, there are other exceptions in the copyright law, including section 108 which applies to reproduction by libraries and archives, and section 110 which allows performance or display of copyrighted works in “face-to-face” teaching activities. There are also specific rules for music (section 107, section 112, section 114, section 115) and works of visual art (section 113).
Reliance upon the fair use exception should be limited to those cases that clearly meet the four-factor fair use balancing test and are carefully documented to support that conclusion. All faculty, instructors, and other authorized personnel should be familiar with the fair use standards; they are encouraged and authorized to make and document a good faith application of these standards to all College-related uses. It is essential that members of the College community make a diligent effort to stay within the bounds of the law in order to avoid both institutional and personal liability for copyright infringement. If in doubt, request permission from the copyright owner. The Kelly Library professional staff will be glad to assist faculty members in locating the copyright holder of materials and securing copyright permissions.
If it is determined that neither fair use nor any other copyright exception applies, permission must be sought from the copyright owner for each specific use (unless a blanket permission has been secured). The Kelly Library professional staff will be glad to assist faculty members in locating the copyright holder of materials and securing copyright permissions.