Answered By: Jennifer Harris
Last Updated: Jan 31, 2019     Views: 257

The Fair Use Doctrine is outlined in 17 U.S. Code § 107 and 108. The Fair Use defense allows for limited use of copyrighted materials without the creator’s permission.

Typical examples of use that may fall under the fair use defense include commentary, criticism, news, research, teaching, scholarship, or citation, although courts use a variety of factors in determining whether any given circumstance constitutes fair use. These factors include:

  1. The 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; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

However, it is important to note that just because a copy is made for an educational purpose does not necessarily mean that it falls under Fair Use. Although it is difficult to generalize, the following guidelines are general best practices:

  • When using an excerpt the portion of the material used should not be “the heart of the work.”
  • Access to the material must be limited to students enrolled in the course and must not persist beyond the end of the course.
  • Students must be reminded of the limitations of the U.S. Copyright Law and must be expressly told that policy prohibits re-distribution of copied material.
  • Copied material “must fill a demonstrated, legitimate purpose in the course curriculum” and be narrowly tailored to accomplish it.
  • The duplication of works that are consumed in the classroom, such as standardized tests, exercises, and workbooks, normally requires copyright clearance.
  • Materials purchased on an individual basis, such as case studies, cannot be posted without copyright clearance.
  • Material borrowed through interlibrary loan cannot be posted without copyright clearance.

Although not a codified part of the Fair Use defense, the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals suggests best practices to help instructors determine when they may use multiple copies of a copyrighted material for student learning use (i.e. one copy per student in a course). The following serve as best practices and can help guide instructors:

  • The copying should meet the brevity test
    • Poetry: A complete poem if less than 250 words (no longer than 2 pages printed) or an excerpt of not more than 250 words if the poem is longer
    • Prose: A complete article, story, or essay of less than 2,500 words or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less
  • The copying should meet the spontaneity test
    • Copying is at your instance and inspiration (at the instance and inspiration of the individual teacher)
    • The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission
  • The copying should meet the cumulative effect test
    • The copying of the material is for only one course
    • Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, not more than three from the same collective work or periodical volume during one class term
    • There shall not be more than nine instances of such multiple copying for one course during one class term
  • Each copy should include a notice of copyright

For more information, please access the Library’s Copyright Guide.

SNHU has provided the resources on this page to help individuals learn more about copyright laws and issues. However, SNHU cannot be responsible for the accuracy or completeness of third party links. This page is intended to be educational in nature and is not meant to constitute legal advice.

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