NOTE: Here is a useful chart to facilitate your fair use analysis first developed by Indiana University’s Copyright Management Center. Long Island University’s Department of Information Technology policies contain a discussion of the Copyright Act, as well as information about where to find a list of legal downloading sites. Please make use of these resources.
SCENARIO 1: A professor copies one article from a periodical for distribution to the class.
FAIR USE? Yes. Distribution of multiple copies with appropriate copyright attribution for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use of the same article weighs against fair use
SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.
FAIR USE? No, if access is open to the public, then this use is not fair use. No exclusively educational purpose can be guaranteed when an article is distributed on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted (password-protected or available only to registered students), then it is more likely to be considered fair use.
SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.
FAIR USE? No. You need to obtain permission before reproducing copyrighted materials for an academic course pack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors may try to delegate this task to a clearance service or copy shop. However, it remains the instructor’s obligation to insure that copyright permissions have been obtained, and the instructor’s liability for each misuse if they are not.
SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.
FAIR USE? No. Although the use is educational, the professor is using more than a single chapter from the textbook. By providing copies of the entire book to his students, he has affected the commercial market for the product. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.
SCENARIO 5: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.
FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place three textbooks, but not the copies, on reserve, or ask the library or department to purchase additional books for student use.
SCENARIO 6: A teacher copies a Shakespearian play from a copyrighted anthology.
FAIR USE? Yes. The play is in the public domain and not subject to copyright protection.
SCENARIO 7: A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.
FAIR USE? The answer to this scenario requires further information. Has the author’s copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice.
SCENARIO 8: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.
FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article only for her personal files and reference purposes.
SCENARIO 9: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.
FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis (see the Checklist for Fair Use), one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source
SCENERIO 10: Using the same facts as explained in SCENARIO 9 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?
FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Online placement on the Web facilitates unlimited access to the book. This would affect the copyright holder's commercial right to publicly distribute the book.
SCENARIO 11: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.
FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.
SCENARIO 12: A teacher makes a copy of the videotape described in SCENARIO 11 for a colleague to show in her class at the same time.
FAIR USE? No. The teacher may lend her personal copy of the videotape to a colleague for this purpose.
SCENARIO 13: A professor wishes to raise funds for a scholarship. She rents a videocassette of a motion picture on which the copyright has expired and charges admission fees.
FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain. Be careful about these assumptions, though, because recent amendments to the Copyright Act have extended many periods of copyright protection that otherwise would have lapsed.
SCENARIO 14: The facts are the same as those in SCENARIO 13 except that the movie is protected by copyright.
FAIR USE? No, because it infringes the copyright owner's right to market the work.
SCENARIO 15: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.
FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.
What if the presentation incorporating the photographs discussed in SCENARIO 15 is broadcast to a distant classroom?
FAIR USE? Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.
What if the presentation discussed in SCENARIO 15 is broadcast to students at their homes or offices?
FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.
What if the teacher's or student's presentation explained in SCENARIO 15 is videotaped?
FAIR USE? This use would be considered fair use, if the videotape is then used solely for educational purposes such as student review or if the videotape is for instruction.
What if the SCENARIO 15 presentation incorporating the photographs is videotaped and rebroadcast within the institution? Is this a fair use?
FAIR USE? The use of the photographs is fair use only if the presentation is videotaped and rebroadcast over the institution’s network for non-public instructional purposes only. Note: if additional copies of the videotape are made, the photographs’ fair use exemption will be lost.
What if the SCENARIO 15 presentation is included in an electronic presentation such as Microsoft's Power Point?
FAIR USE? This should be considered fair use as long as the electronic presentation is solely for institutional educational or instructional use.
What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 15?
FAIR USE? Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.
SCENARIO 16: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.Can the music be included in the teacher's or student's initial presentation?
FAIR USE? This is fair use if instruction is occurring, as long as the teacher or student paid for the recording in the first place and duplicate copies of the presentation are not made.
Same facts as SCENARIO 16. The presentation is broadcast to a distant classroom using two-way interactive video (GSAMS).
FAIR USE? Yes. The use of interactive video for educational instruction is considered a fair use, as it is simultaneous.
What if the teacher's or student's presentation described in SCENARIO 16 is videotaped?
FAIR USE? It is fair use if only if the videotape continues to be used for instructional purposes.
What if the SCENARIO 16 presentation is videotaped and rebroadcast?
FAIR USE? The answer depends on the usage. If instruction is occurring where the presentation is shown and there are no admission charges to the rebroadcast, the presumption is of fair use. Tuition and course fees do not constitute admission fees.
What if the SCENARIO 16 presentation is included in an electronic presentation (excluding the Internet)?
FAIR USE? This is fair use only if instruction is occurring.
SCENARIO 17: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester.
FAIR USE? Possibly. If the presentation is solely for instruction and no single piece is an entire subunit (aria, movement or the like) of the work. As is true for printed material, repeated use by an instructor of the same set of third party musical works in the classroom setting weighs against fair use, as do extended extracts from the source material.
The opera classroom presentation (SCENARIO 17) or the presentation containing background music (SCENARIO 16) is placed on the Internet?
FAIR USE? This will only be fair use if access to the instructional site is restricted to enrolled students, e.g., by use of a password or PIN or other means, and available only for limited periods of time.
SCENARIO 18: Institution A creates a telecourse. The course contains copyrighted text, video, audio, and photographs relevant to the class. If Institution A did not obtain permission to use the copyrighted materials, can Institution A show the videotape of the telecourse to students who have signed up for a telecourse at Institution A?
FAIR USE? If the selections of material used to create the videotape fall within the fair use guidelines for text, audio and video, showing the videotape to students enrolled in the telecourse is a fair use.
Assume same facts as in SCENARIO 18. If Institution A did not obtain permission to use the copyrighted materials, can students at Institution B enroll and receive credit for the course at Institution B?
FAIR USE? Perhaps. Use of the videotape by a second institution complicates the issue, particularly if Institution A charges a fee (receives commercial benefit) for Institution B’s use
Assume same facts as in SCENARIO 18. What if the telecourse is transmitted via the Internet?
FAIR USE? If the telecourse is broadcast and there is open access, the audience is no longer clearly defined. A rebroadcast over the Internet to a global audience is not a fair use. A restricted broadcast to online instructional recipients of the telecourse is a fair use.
SCENARIO 19: A faculty member at Institution C creates a searchable database of copyrighted materials. The database is used as a part of a distance learning course and is available only on the institution's webserver. Students enrolled in the course access the course materials from home, work and other areas that are not traditional classrooms. Access to the database is controlled and available only to students enrolled in the class. The faculty member did not obtain permission to use the copyrighted materials.
FAIR USE? Yes. As long as the materials are being accessed for educational instruction and access remains controlled, the excerpts fall within the fair use guidelines.
SCENARIO 20: A student is taking a distance learning class in which the instructor has required that a particular assignment be created for unlimited distribution on the web. A student includes an audio segment of copyrighted music (video, news broadcast, non-dramatic literary work).
FAIR USE? No. Since the teacher specifically stated that the project is being created for distribution over the web, this is not a fair use of any of the listed copyrighted materials and prior permission must be obtained from the copyright owner.
Same facts as SCENARIO 20, however, access to each student's Web page will be restricted to other students in the class.
FAIR USE? Yes.
SCENARIO 21: An instructor is teaching a class delivered on cable television or via two-way interactive video (GSAMS), and she uses a commercial videotape (either in its entirely or a portion), which is sold for instructional purposes, during a class to illustrate a concept covered in the discussion.
FAIR USE? Yes. She is using a commercial video for its intended purpose. Moreover, it is being used to illustrate a concept connected with the class discussion.
Same facts as SCENARIO 21, but the class is distributed over the Internet.
FAIR USE? This is a fair use only if the Internet access is restricted to registered students.
Same facts as SCENARIO 21, but the videotape is not "educational" in orientation.
FAIR USE? Only distribution over two-way interactive video or cable television controlled by the institution would be fair use, as would restricted distribution over the Internet. Unrestricted distribution over the Internet is not a fair use.
SCENARIO 22: A faculty member records a segment from a television program. The segment will be shown in a GSAMS class the following day. The remote sites will record the class in the event of technical difficulties, for later review by registered students.
FAIR USE? Yes.
Assume there are technical difficulties in SCENARIO 22 and the remote sites replay the tape containing the program segment.
FAIR USE? Yes. The use is for instructional purposes.
SCENARIO 23: Institution E records a two-way interactive video class that contains copyrighted works. The tapes are kept for the entire quarter to serve as a review resource for students who may have missed a class or as backup in the event of technical difficulties. At the end of the term, the tapes are erased.
FAIR USE? Y es.
What if the professor who conducted the class in SCENARIO 23 decides to show the tape to her continuing education class (or to a community group)?
FAIR USE? Showing the tapes to her continuing education class is only fair use if the professor uses the material in an educational context and no admission fee is charged. The fact that the user of the tapes is a professor does not automatically make the community group event an educational one, particularly if fees are charged. One would need to conduct a fair use analysis.
SCENARIO 24: Institution E records a two-way interactive video class that contains copyrighted text, video, audio, and photographs that are relevant to the class. Institution E rebroadcasts the videotape to a class at Institution F; no extra fees or charges are involved.
FAIR USE? Yes. It is fair use since instruction continues to occur.
Electronic Course Reserves
SCENARIO 25: A professor wants to add a book chapter to the library's electronic reserve system.
FAIR USE? Yes. The chapter may be added if access to the system is limited to students enrolled in the class.
SCENARIO 26 : The professor in SCENARIO 25 will be teaching the same course for three successive terms. She wants to leave a book chapter on the electronic reserve system for this period of time.
FAIR USE? Yes. The use is fair if access is limited to students and the work is out of print and not readily available. However, if the book is currently in print, then a fair use analysis is required.