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Copyright

Copyright Exceptions

There are exceptions to copyright that permit the limited use of a work in some situations, including the classroom. These exceptions include

  • The Classroom Use Exemption,
  • Fair Use, and
  • First Sale.

Classroom Use Exemption

Instructors and students must meet four criteria to qualify for the Classroom Use Exception:

  1. Instructors and students must be involved in face-to-face teaching; online instruction is not covered under this exemption.
  2. Instruction must take place in a classroom.
  3. Instruction must be at a nonprofit educational institution.
  4. The work or copy being used must be legally acquired or made.

If all of these criteria are met, students and instructors are allowed to perform or display a work protected by copyright. It is important to note that this exception does not permit the copying and/or distribution of works.

Copyright Law of the United States, 17 U.S.C. §110(1)

Fair Use

The Fair Use exception allows for the use of works without the permission of the copyright holder. Fair Use is determined by evaluating the use based on four factors:

  1. Purpose & Character of the Use.
  2. The Nature of the Original Work.
  3. Amount & Substantiality of the Portion Used.
  4. Effect of the Use on the Potential Market for or Value of the Original Work.

All of these factors are considered and weighed against each other when determining if a use qualifies as Fair Use. For example, meeting one or two of the factors doesn't necessarily qualify fair use.

Click through the tabs for a fuller explanation of each factor.

Copyright Law of the United States, 17 U.S.C. §107

Check out this helpful Fair Use Infographic.

Certain types of use favor Fair Use. These types of use include

  • education,
  • scholarship,
  • research,
  • news reporting, and
  • criticism or commentary.

Commercial use would count against this factor.

Although classroom use would be covered under this factor, remember that you also need to consider the other factors as well.

The nature of the work you wish to use is considered in two ways:

  1. whether it is published or unpublished, and
  2. whether it is a more factual or more expressive work.

Published works are more favored by Fair Use. The original author or creator should have a say if and when their work is shared with others, which is why unpublished works would not qualify for this factor.

Factual works are also more favorable for Fair Use than expressive works (i.e., fiction, poetry, etc.). Since copyright does not protect ideas or concepts, factual works are more favorable for Fair Use.

This does not mean that factual works are not protected by copyright. Many scholars have written about the American Revolution, for example. The historical facts are not protected; anyone can write about them. Copyright protects how different scholars write about this event; the different words they use to express their ideas about the topic. This is why books about history - or any factual topic - are still protected by copyright.

Using a smaller amount of a work favors fair use, but this should be considered proportionally. Using 2 pages from a 50-page document, is not the same as using 2 pages from a 5-page document.

You should also avoid using the heart, or the most substantial part, of a work. This is less likely to be considered fair use. For example, displaying a 5-minute clip from a 90-minute movie, is a small proportion of that film. But if that clip is the most substantial part of the movie - whether due to its development in the plot, or it being the most famous scene from the film - it is considered the heart of the movie, and will less likely qualify as fair use.

If the use of a copyrighted work harms its market value, then it will probably not be protected under Fair Use. The use of the work should not be used to substitute for the purchasing of that work.

For this reason, Fair Use does not protect the copying and distributing of educational materials (textbooks, workbooks, etc.) that have an active copyright, even if this takes place in a classroom.

First Sale

The doctrine of First Sale permits a person to freely distribute a copy of a work that they have legally acquired. This can take place through lending, leasing, sale, or donation. This exception is what allows libraries to function, and provides for the legal operation of the used book, movie, and videogame markets.

Copyright Law of the United States, 17 U.S.C. §109