Fair Use

While the TEACH Act provides some permissions for using copyrighted materials for online instruction, it is considered by many to not go far enough in supporting necessary uses. Luckily, using the TEACH Act to justify your actions is voluntary and, as the University of Texas Libraries note, “even if we rely on and find 110(2) helpful, fair use will still figure heavily in our exercise of performance rights.” So what exactly is fair use?

Fair use is written into copyright law as a special exemption from the limitations of exclusive use by the copyright holder. Section 107 of copyright law states that use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It is right there in the law–”teaching (including multiple copies for classroom use)”–so don’t ever feel like you are being graciously allowed fair use of content for teaching. That is your right under the law.

In order to confirm that an intended usage of material is fair use, the law includes four factors for consideration. The actual statements in law are relatively brief, but there have been many interpretations supported by cases to form a general understanding of the four factors as summarized here from Stanford University Libraries’ review of fair use.

1. The “purpose and character of the use” gives preference to non-commercial/transformative use and specifically mentions education
2. The “nature of the copyrighted work” refers to whether the work is factual (more supported) or creative (less supported)
3. The “amount and substantiality of the portion used” is the most widely disputed and confusing test. It is generally agreed that less is better and certainly no more should be used than is necessary for teaching.
4. The “effect of the use upon the potential market” test checks to see if the usage is truly expedient or simply a refusal to purchase

This online checklist can help you determine the applicability of fair use to your intended usage. After completing the checklist, you can print out a document for your records showing that you completed an evaluation. This is important because section 504(c)(2) provides protections for teachers in a “case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107.” Filling out this checklist establishes grounds for believing that an action fell under fair use.