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Fair Use for Faculty

The issue of just what is fair use of copyright-protected materials comes up often in education circles. The key for faculty is to apply the four-factor test set forth in the copyright law.

  • Make sure that the use is for education in a non-profit educational setting. The use also has to be germane to the instruction of the topic. In other words, don’t show a movie just for entertainment or as a “reward”.
  • Make sure that you legally obtain the copy. Even it’s used for educational purposes a bootleg copy of a video is still illegal. When possible use factual works but when necessary, dramatic works can be used to illustrate a point or as a basis for criticism or commentary. Factual works are usually more in the public domain or have more fair use applications. Dramatic works are more heavily protected by copyright. You may also use excerpts from periodicals but make sure that that a copyright notice appears on each copy. It’s probably a good idea to follow the copyright photocopying guidelines.
  • Unless you’re teaching a course on a specific author, it’s not a good idea to use too many items from one author. Also, according to the guidelines, you need to either obtain permission or use another author after two years.
  • Finally, use of copyright-protected material should not be a substitute for students purchasing textbooks or other books readily available in the market place. One of the key components of the copyright centers is the effect of use on the marketability of the work. Does your use dilute the market or potential sales of the copyright holder? If it does then you’re probably infringing on the copyright holders’ rights. Limit your use of copyright protected works to those in your classes and the immediate educational community.

Licensing

It’s important to remember that any license you enter into with a publisher overrules basic copyright provisions. For example, under copyright law it is illegal to copy from tests or other “consumables”. However, a textbook publisher will often grant permission to copy tests from test banks if you have adopted the textbook. Likewise, almost all computer software comes with separate licensing agreements that puts limits on uses that might have been acceptable under the Fair Use clause.

Permission

Finally, remember you can ask for (and often obtain) permission to use copyright-protected materials for your courses. It is important to first identify what material you wish to use, how much and why. Then contact the publisher and request permission for that specified use. Often this will result in no reply. Don’t give up. The Copyright Clearance Center provides a service of researching and requesting permission from copyright holders. There is often a fee that accompanies the granting of permission. The fees can be negotiated through your academic department.