Find the scenario below which matches your own situation most closely, to get guidance in specific instances. If you need more help, reach out to a librarian!
An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course Brightspace site. Is this fair use?
Fair use is determined by the results of the four factor analysis conducted for each work. In this scenario, the instructor must conduct a four factor analysis for each journal article, each textbook section, and any other work she wishes to include on the class Brightspace site. The result may be mixed and fair use might apply to some works while others may require permission from the rights owner for inclusion on the class website.
Professor L would like to post on Brightspace a single fact-based journal article which is relevant to the course she teaches. Professor L used the same article last year for the same course.
The purpose of the use of the journal article is educational, which weighs in favor of fair use.
The nature of the work is factual, which weighs in favor of fair use.
A single article from a journal may be considered an entire work by itself, which can tip this factor against fair use. If use of the entire work is necessary for the educational purpose, the amount may be appropriate.
Use in one semester may have only minimal market effects, but repeat use can begin to compound the market harm. At some point, ongoing uses may begin to tip this factor more strongly against fair use. On the other hand, if the particular article is not licensed or marketed for such uses, the harm here will likely be slight at most.
Professor L should investigate whether the university library subscribes to a database which includes the desired article. If so, students should be able to access the article by linking to the database from Brightspace.
An instructor has found an article in a professional journal that is particularly useful for a class she teaches every semester. She would like to include the article as a reading this semester, and then again next time she teaches the course. Is this a fair use?
The repeated use of a copyrighted work, from term-to-term, requires particular scrutiny in a fair use evaluation. Such a use explicitly relates to "market effect", the fourth factor in the evaluation. This factor requires one to consider the impact of using a copyrighted work on any market for the original article, including the permissions market. Repeated use, as well as class size, may impact this consideration. Smaller class sizes may mitigate the impact on permissions markets to some extent, and using the article only once, not in future semesters, may further limit the overall market effect of a decision to forego permissions.
While not an automatic disqualification, repeated use of a copyrighted work weighs against fair use. For any repeated use to be judged as a fair use, it must be outweighed, in the balance, by the remaining three factors of the evaluation (purpose, nature, and amount). In this case, the library can assist in obtaining rights permission for an article regularly used in a class.
An instructor wants her students to read an article from a professional journal. She accesses the full text of the article as a PDF through the university library. She saves the article to her computer and then uploads it to her course's Brightspace site for students to download.
Since the instructor obtained the article from a library's licensed electronic resource she needs to understand general limitations and restrictions on use that may be contained in the license agreement between the publisher and the library. The terms of such license agreements control how the materials may be used. Frequently license agreements do not allow copying of PDF files and reposting them to a class web site or Brightspace site. However, in numerous instances the instructor can make articles available to students from a course web page through a direct link.
Professor D would like to post on Brightspace multiple newspaper articles spanning several weeks from a local paper. The articles are news items and are relevant to the subject of the course. Professor D subscribes to the newspaper.
The purpose of the use of the news articles is educational, which weighs in favor of fair use.
The news articles are fact based, which weighs in favor of fair use.
Posting only single news articles and not the entire newspaper probably weighs in favor of fair use.
Limiting access to the articles to only the students enrolled in the course should tip this factor in favor of fair use. However, the continued use of the same newspaper may begin to tip this factor against fair use.
In this scenario, Professor D should investigate whether the university library subscribes to the newspaper or a database which includes the desired articles. If so, students should be able to access the articles by linking to the database from Brightspace.
An instructor wants to create a copy of a documentary and post it to her password-protected course website for download.
In the face-to-face classroom setting this situation is clearly allowable under the provisions in U.S. copyright law.
When adding a video to Brightspace, the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored.
However, if the film is loaded onto Brightspace in streaming format, thus preventing a student from storing the file, this will limit the market effect, and tip towards fair use.
Professor L would like to post on Brightspace a video recording of a recent television broadcast which is relevant to the course. The show is part of a series aired on network television and broadcast to the public at no charge.
The purpose of the use of the television show is educational, which weighs in favor of fair use.
The law of fair use applies more narrowly to highly creative works such as television shows. This may tip this factor against fair use. On the other hand, if the program is more "factual," such as a news or current affairs program, this factor may tip towards fair use.
Professor L should limit the portion of the video recording to the amount needed to satisfy the educational purpose.
Limiting access to only the students enrolled in the course may tip this factor in favor of fair use. If the program is available for purchase, this factor will tip more strongly against fair use. Using network television programs which are available to the public at no charge will more likely fall within fair use than the use of a program only available on a cable network for paid subscribers.
Providing one copy of the video recording in the library reserves for students to check out will more likely be a fair use than posting the recording on Brightspace. If the program is available for purchase, the instructor should consider placing purchased copies on reserve in the library. Assuming that taping one copy off-air is fair use (which is often true), sharing that one copy of the tape with students should also be lawful.
In the attempt to save students money a professor scans several chapters from an expensive textbook for her course and uploads a PDF file of the chapters to her Brightspace site for students to read. This is the only material the students need from this particular textbook to complete class assignments. Is this a fair use?
This is not a fair use. A four factor analysis of these circumstances would reasonably conclude that the market is directly affected by this activity. Students who would otherwise be expected to purchase the book no longer need to and the publisher is thus deprived of sales. An alternative approach for the teacher would be to place an appropriately acquired copy of the textbook on reserve in the library or to ask students to purchase the text from the bookstore.
Professor F would like to post on Brightspace several single chapters (some being quite lengthy) from multiple novels for a literature course. Each chapter is relevant to the course. The library owns each novel. Because the chapters are from separate works, the instructor needs to evaluate fair use with respect to each one individually; most often the analysis will be the same.
The purpose of the use of the book chapters is educational, which weighs in favor of fair use.
The law of fair use applies more narrowly to highly creative works, such as novels. The creative nature of novels often weighs against fair use.
Posting brief excerpts of an entire work may weigh in favor of fair use. Isolated, individual, and short chapters may be satisfactorily brief. However, because of the highly creative nature of novels, and the fact that some chapters are quite lengthy, Professor F should consider choosing shorter excerpts if the educational goal for using the material can still be achieved.
Limiting access to the articles to only the students enrolled in the course may tip this factor in favor of fair use.
Professor F may want to consider creating either a hardcopy or electronic coursepack by seeking permission from the copyright owners of the materials. If the materials are used semester after semester, Professor F or the library should consider purchasing multiple copies of the books to make them available to students each semester. Another possible option would be for Professor F to require each student buy a copy of each book, if reasonably available.
Professor M would like to post on Brightspace a copy of an unused, commercially-printed workbook she owns which corresponds to the course she teaches. The workbook is relevant to the course.
The purpose of the use of the materials is educational, which weighs in favor of fair use.
Workbooks are "consumable" materials, which may weigh heavily against fair use. These types of materials are marketed specifically for students such as those enrolled in the course. These materials are meant to be used and replaced regularly and not routinely copied.
Providing significant excerpts or the entire workbook would weigh against fair use.
Workbooks are created for the educational market and students are the main purchaser of such materials. Providing students with these materials may deeply affect the market for them and therefore may weigh heavily against fair use.
Permission from the copyright owner should be sought for "consumable" materials used. Instructors should also consider having students purchase the workbooks.
Professor J would like to post on Brightspace portions of a book of poems she owns that has been out of print for five years. Professor J plans only to use portions of the book which are relevant to the course. Professor J believes this book to be the best tool for teaching the course.
The purpose of the use of the poetry is educational, which weighs in favor of fair use.
Fair use applies more narrowly to highly creative works such as poems. The nature of these works probably weighs against fair use.
Limiting the amount of material used to brief excerpts of an entire work weighs in favor of fair use. On the other hand, each poem will probably be treated as an entire work, and excerpts of a single poem may or may not be adequate for educational purposes.
Although the book is out of print (and therefore there is no current market), the copyright owner of the collection or of each poem may decide in the future to re-offer the material for commercial purposes. Also, the copyright owner may be prepared to license the material for copying. These possibilities are "potential" markets. However, limiting access to the articles to only the students enrolled in the course may tip this factor in favor of fair use.
When dealing with out-of-print materials, Professor J should keep in mind that the materials may possibly be obtained through other sources available for purchase. The one book in question may not be the only source for the desired poetry.
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