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Best Practices for Teaching and Fair Use: Introduction

Fair Use

Fair Use allows educators greater freedom in using copyrighted materials.

Copyright is held for a limited time so that copyrighted works do, in time, come into the public domain. Title 17 of the United States Code, the United States Copyright Act, also places limitations on the exclusive rights to copyrighted material during the time the material is covered by copyright. One important limitation is commonly known as the Fair Use Exemption in the Copyright Act.

The fair use exemption states that fair use is the use of a copyrighted work, including such use by reproduction in copies or phonorecords . . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

 

Determine Fair Use

It is up to you to determine if the material to be used falls within Fair Use.

To determine this, you must consider these four factors:

  • the purpose of the use of the copyrighted work,
  • the nature of the copyrighted work,
  • the amount of the copyrighted work to be used, and
  • the effect of reproduction on the sale of the copyrighted work.

Use this fair use check-list developed by Columbia University Libraries when determining if your planned use of copyrighted material is permitted under fair use. Or check out the Section 108 Spinner.

TEACH Act

Background

The Technology, Education and Copyright Harmonization Act (TEACH Act) was signed into law in 2002 and served to expand and clarify copyright law (specifically sections 110(2) and 112(f)) to recognize the current methods used in distance instruction, but it is not meant to over-ride a fair use claim or argument for the fair use of copyrighted material.

Distance instruction (largely online teaching) now represents a range of practices, from teaching a course completely online to posting an individual assignment on the web as part of a course otherwise entirely delivered in a face-to-face setting.

Brooklyn College, as an accredited, nonprofit educational institution, makes information about copyright available to all in its community and is covered by the provisions of the TEACH Act.  As faculty at Brooklyn College you may use copyrighted material specifically related to the content of a course and are required to alert students that materials used in connection with your course may be subject to copyright protection.  Additionally, you may only make these materials available to students registered in the course.

The Specifics

You Can!  

The copyright law, as reshaped by the TEACH Act, now explicitly permits the transmission of:

  • Complete performances of non-dramatic literary or musical works;
  • Commercially produced educational media for which you or the college has a license;
  • Reasonable and limited portions of a dramatic literary, musical, or audiovisual works;
  • Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching; and
  • Copies of analog content that you have digitized because digital copies currently available prevent you from excerpting portions as allowed by the law.

Be Careful Not To . . .

  • Continue to provide access to content for “longer than the class session.”  Interpretations of the meaning of "class sessions" have varied.
  • Use copies of performances or displays that you are aware were obtained outside the law; or
  • Use textbooks, coursepacks and similar materials typically purchased individually by the students for the course.

Tools

Copyright Restrictions

Conformity with copyright restrictions is the responsibility of the instructor.
 
In order to comply with the fair use provision of Section 107 of the copyright law (Title 17, U.S. Code), you cannot. . .
  • reproduce more than 10% of a book;
  • create an electronic course pack that is an exact replication of a published anthology;
  • reproduce workbooks, exercises, standardized tests and test booklets and other published consumable material;
  • systematic downloading from licenced databases, such as with bots or intelligent agents, is not permitted.

You may always...

When the Fair Use Exemption does not apply.

There exist situations where the Fair Use Exemption does not apply.

You are responsible for obtaining copyright permission for any use of materials that does not comply with the fair use exemption, or any other exemption provided by the Copyright Act. Recognizing when you will need to obtain copyright permission often depends on the nature of the material being used and the length of time you will be making the copyrighted material available.

For example, the fair use exemption does not allow for the reproduction of large portions of a work or for making it available for a long period of time, because this can affect the sale of the work (the third and fourth factors of the fair use exemption).