Fair Use by Use

1. Using Copyrighted Media Materials in the Classroom

2. Copying and Distributing Copyrighted Materials in the Classroom or on the Web

3. Using Copyrighted Materials in Multimedia Projects

4. Using Copyrighted Materials in Research/Writing

5. Using Copyrighted Materials in eReserves


Using Copyrighted Media Materials in the Classroom

Showing or Playing Copyrighted Media for Classroom Instruction in the Classroom or for Distance Education

SCENARIO: A teacher wishes to show or play copyrighted media either in portions or in its entirety in her classroom for instructional purposes.

GUIDELINE: This is fair use since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.

SCENARIO: A teacher wishes to digitize and transmit copyrighted media either in portions or in its entirety to her online class for instructional purposes.

GUIDELINE: This is fair use as long as it is restricted to students officially enrolled in the course and technological measures are applied that prevent the retention of the work for longer than the class session and that prevent unauthorized further dissemination of the work.   Note:  depending on the length of the work, there may be technical limitations associated with bandwidth and storage.  Each case must be coordinated with the University's Office of Information Technology.  In all cases, the instructor should ensure that the copyright notice is included in the transmission.

Copying Media for Classroom Instruction

SCENARIO: An instructor makes a copy of a video or sound recording for a colleague to show in her class at the same time.

GUIDELINE: This is not a fair use. The teacher may lend the recording but may not make a copy of it unless she has obtained permission from the copyright holder.

Copying Media into another Format for Classroom Instruction

SCENARIO: An instructor requests a copy of a library-owned video in a format that will play on University classroom equipment in Europe or Asia.

GUIDELINE: This would be a fair use if a copy in the appropriate format cannot be purchased.  The library may make one copy of the media and place the original in storage until the copy is returned and destroyed.

Showing or Playing Media in a Public Setting

SCENARIO: An instructor or student or campus organization wishes to show or play copyrighted media (including library, personal, or rented media) on or off campus free of charge in a public setting. A public setting is defined by law as “at a place open to the public” or where "persons outside of a normal circle of a family and its social acquaintances is gathered."

GUIDELINE: This is a fair use only if the instructor, student, or club has negotiated public performance rights. A few of the library's videos have public performance rights. To see a list of these, type the following in the key word search of the library's catalog: "public performance rights". Furthermore, if the instructor, student, or group wishes to charge admission, this right must also be negotiated.

Off-Air Recording of Broadcasts for Classroom Use

SCENARIO: An instructor wishes to either record off-air or have the Media Center record off-air a broadcast program to show in portions or in its entirety in her classroom for instructional purposes.

GUIDELINE: The federal government has published very specific guidelines for this (see below), and as long as the off-air recording meets these guidelines, it is fair use.

GUIDELINES FOR OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR EDUCATIONAL PURPOSES The following excerpts are reprinted from the House Report on piracy and counterfeiting amendments (H.R. 97-495, pages 8-9).

  1. The guidelines were developed to apply only to off-air recording by non-profit educational institutions.
  2. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable transmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately.  "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.
  3. Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days--not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions--within the forty-five (45) calendar day retention period.
  4. Off-air recordings may be made only at the request of, and used by, individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
  5. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
  6. After the first ten (10) consecutive school days, off-air recording may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
  7. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
  8. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
  9. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.

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Copying and Distributing Copyrighted Materials in the Classroom or on the Web

Journal Article for Classroom Use

SCENARIO: An instructor copies one article from a periodical and then makes multiple copies for distribution to the students in his class.

GUIDELINE: Distribution of multiple copies for classroom use is a fair use.  Always include any copyright notice found on the original and appropriate citations and attributions to the source.

Posting Journal Articles on the Web

SCENARIO: An instructor has posted his class notes on a Web page available to the public. He wants to scan an article from a copyrighted journal and add it to his Web page.

GUIDELINE: If access to his Web page is restricted (via WorldClassRoom or eReserves) to the students in his course, then this is a fair use.

Copying and Distributing Portions of Copyrighted Works in the Classroom or on the Web

SCENARIO: An instructor copies excerpts of documents, including copyrighted text books and journals, from various sources to distribute to his class or on the web.

GUIDELINE: One must do a fair use analysis of each excerpt.  (See a form here: http://www.lib.umn.edu/copyright/checklist.phtml).  If the use of each excerpt complies with the fair use criteria, then use of the material is a fair use.  Criterion Three, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," is generally the most difficult one to determine.  The following guidelines are often used to meet Criterion Three:  a chapter from a book; an article from a periodical or newspaper; a short excerpt from a Web page; a short story, short essay or short poem, whether or not from a collective work; or a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.  Always include any copyright notice found on the original and appropriate citations and attributions to the source.Note: These guidelines for Criterion Three are not intended to limit the types of copying permitted under the standards of fair use which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines may nonetheless be permitted under the criteria of fair use. If you plan to exceed these guidelines by more than double the stated amount above, you must seek the counsel of the Academic Affairs Office.

Compiling and Distributing Coursepacks

SCENARIO: An instructor copies excerpts of documents, including copyrighted text books and journals, from various sources to distribute to his class or on the web as a coursepack.

GUIDELINE: One must do the fair use analysis to determine if preparing a coursepack for students in the class is fair use. (See a form here: http://www.lib.umn.edu/copyright/checklist.phtml). If the use of each excerpt complies with the fair use criteria, then use of the material is a fair use. Criterion Three, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," is generally the most difficult one to determine. The following guidelines are often used to meet Criterion Three: a chapter from a book; an article from a periodical or newspaper; a short excerpt from a Web page; a short story, short essay or short poem, whether or not from a collective work; or a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. Always include any copyright notice found on the original and appropriate citations and attributions to the source. Note: These guidelines for Criterion Three are not intended to limit the types of copying permitted under the standards of fair use which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines may nonetheless be permitted under the criteria of fair use. If you plan to exceed these guidelines by more than double the stated amount above, you must seek the counsel of the Academic Affairs Office. If the use of each excerpt complies with the fair use criteria, then use of the coursepack is a fair use. The inclusion of the excerpts in a coursepack will not change a fair use to an infringing use. Always include any copyright notice found on the original and appropriate citations and attributions to the source.  For coursepacks that do not meet the fair use guidelines, the instructor should plan to use the coursepack service offered by Follett Bookstore for the St. Louis campuses and Missouri Book Store or local copy service for extended campuses.

SCENARIO: Same facts as above except the professor prepares a digital or electronic coursepack. Is the preparation of an electronic coursepack for students in the class a fair use?

GUIDELINE: It is a fair use as long as each excerpt complies with the fair use criteria.  Access to his Web page must be restricted (via WorldClassRoom or eReserves) to the students in his course.  Always include any copyright notice found on the original and appropriate citations and attributions to the source.  For coursepacks that do not meet the fair use guidelines, the instructor should plan to use the coursepack service offered by Follett Bookstore for the St. Louis campuses and Missouri Book Store or local copy service for extended campuses.

Using Tests, Textbooks, Workbooks, and other "Consumables"

SCENARIO: An instructor wishes to use or show an instructor copy of a test or other "consumable" or component of a consumable such as a CD in a class.

GUIDELINE: Whether or not this is fair use depends on license terms included with the instructor copy.  These will specify any restrictions in use and whether permission is required. 

SCENARIO:  An instructor wishes to copy and distribute a test in class.

GUIDELINE: Tests normally cannot be used without the permission of the copyright owner.  In effect this means that you buy as many copies as you are planning to use from the publisher. A publisher may be willing to provide a specimen test on request. Even if you want to use an unpublished test, you must ask for permission to use it from the creator of the test.

SCENARIO: An instructor wishes to copy and distribute a textbook or workbook or an associated component such as a CD in a class.

GUIDELINE: This is not fair use because workbooks and textbooks are "consumable" materials.  They are created for the educational market and students are the main purchaser of such materials. Providing students with these materials would deeply affect the market for them and therefore would not comply with fair use.

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Using Copyrighted Materials in Multimedia Projects

Incorporating Copyrighted Media into Multimedia Projects

SCENARIO: An instructor or student wishes to incorporate portions of copyrighted materials in a multimedia project for use as part of a course.

GUIDELINE: This is fair use as long as each portion meets the fair use criteria. Criterion Three, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," is generally the most difficult one to determine. The following guidelines are often used to meet Criterion Three: a) Motion Media: Up to 10% or 3 minutes, whichever is less; b) Text: Up to 10% or 1000 words, whichever is less; c) Music, Lyrics, and Music Video: Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical; d) Photographs: The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. e) Numerical Data Sets: Up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table. Note: These guidelines for Criterion Three are not intended to limit the types of copying permitted under the standards of fair use which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines may nonetheless be permitted under the criteria of fair use. If you plan to exceed these guidelines by more than double the stated amount above, you must seek the counsel of the Academic Affairs Office.

Storing Multimedia Projects on the Web

SCENARIO: An instructor or student wishes to store or transmit a multimedia project containing copyrighted materials on the Web.

GUIDELINE: This is fair use as long as it is restricted to students officially enrolled in the course and technological measures are applied that prevent the retention of the work for longer than the class session and that prevent unauthorized further dissemination of the work.

Distributing Multimedia Projects Beyond a Course

SCENARIO: An instructor or student wishes to distribute a multimedia product containing copyrighted materials to persons not enrolled in the course or to another institution.

GUIDELINE: This would not be fair use, since, even for educational uses, educators and students must seek individual permissions for all copyrighted works incorporated in their personally created educational multimedia projects before replicating or distributing beyond their course.  Note:   Demonstrating a multimedia project in an educational setting or at a professional conference would be a fair use since it does not involve replicating or distributing the materials.

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Using Copyrighted Materials in Research/Writing

Using Copyrighted Material in Writing

SCENARIO: A professor is writing a book comparing the work of three women poets, all of whose poems are copyrighted.  The professor would like to quote the poems in her book.

GUIDELINE: This is one of the traditional types of fair use, that is, creative fair use. Two other examples of fair use are use for comment and criticism.

SCENARIO: A professor wishes to edit and publish a collection of unpublished letters in the library archives.

GUIDELINE: Further information is required to determine whether this if fair use.  Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the Academic Affairs Office. Note:  Many other uses of copyrighted materials in writing are allowable as long as they meet the fair use guidelines.  Publishers' guidelines vary widely in regard to use of copyrighted materials.

SCENARIO: An instructor or student wishes to use material found on the Internet in projects, papers, coursepacks, etc.

GUIDELINE: With the exception of U.S. Government Internet resources, which are in the public domain and do not require permission for their use, copyright law and fair use applies to all other other material published on the Internet.  Typically, it is fine to include links to point users to others' sites, but if excerpts are taken from Web pages for use in projects, papers, coursepacks, etc., one must do a fair use analysis of each excerpt.

Making Copies of Copyrighted Materials for Files

SCENARIO: An instructor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

GUIDELINE: This is a classic example of personal fair use so long as the instructor uses the article for her personal files and reference.

Copying Out-of-print Books for Files

SCENARIO:  A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research.

GUIDELINE: The professor may copy the book for her files.  This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.

Sharing Electronic Subscription Files

SCENARIO: A professor has an individual subscription to an online journal and wishes to forward articles to her colleagues.

GUIDELINE: Whether this is fair use depends on the terms of the subscription license.  If the license prohibits transfer to a non-subscriber, then this would not be a fair use.  In some cases, publishers will permit a subscriber to print a hard copy of the article to share but not to transfer the online copy.

Copying Media into Another Format for Home Use

SCENARIO: A student or faculty wishes to have media copied (e.g., LP to CD) so they can play it on their home equipment.

GUIDELINE: This would not be a fair use.  Staff may not make copies of media for home use.  The library has equipment to view or play all of its media formats.

Providing Technical Assistance for Unauthorized Copies of Media

SCENARIO:  An instructor or student seeks technical assistance to display or play a video or sound recording that appears to be an unauthorized copy.

GUIDELINE:  This would not be a fair use.  Webster University staff may not provide technical assistance if they know or reasonably believe that it was not lawfully made or acquired.

Illegal Downloading and/or Copying on University Computers

SCENARIO:  An instructor or student downloads copyrighted material and/or copies copyrighted materials outside the limits of fair use using a University computer.

GUIDELINE:  The University's Computer Technologies Acceptable Use Policy (http://www.webster.edu/technology/references/acceptable-use-policy.html) forbids copyright violations on University computers.

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Using Copyrighted Materials in eReserves

Length of Items Placed on eReserves

SCENARIO: An instructor wishes to place excerpts of copyrighted materials on eReserves.   How long can these excerpts be?

GUIDELINE: To comply with fair use, items placed on eReserves must be limited to the students enrolled in the course and should be limited to short items, such as an article from a journal, a chapter from a book or conference proceedings, or a poem from a collected work.  However, there may be exceptions for longer portions if it is determined that a longer portion is necessary to support a lesson. If a faculty member plans to use a longer item that constitutes more than 25% of an entire work, he/she must seek the counsel of the Academic Affairs Office. 

Placing Entire Books on eReserves

SCENARIO: An instructor wishes to place an entire book on eReserves.

GUIDELINE: This is not fair use.  Copyright permission must be obtained to place entire books on eReserves.  This is true even if the books are out-of-print. 

Retention of Items on eReserves

SCENARIO: An instructor wishes to reuse an eReserves item in a subsequent class.  Is leaving items on eReserves for successive terms a fair use?

GUIDELINE: If the first use of an item on eReserves meets the fair use guidelines, it may be used in subsequent semesters for different classes of students. 

Posting Online Articles on eReserves

SCENARIO: An instructor wishes to post an article from an electronic database on eReserves and use it for more than one semester.

GUIDELINE: Repeat use may be allowed for materials in databases subscribed to by the library when access is not practicable by providing a link or directing students to the materials.

Filling an Interlibrary Loan Request with Articles in the Library's Online Databases

SCENARIO: The library has been asked to fill an interlibrary loan request with an article from one of the online databases it leases.

GUIDELINE: Each database license agreement stipulates terms regarding use of the database for ILL purposes. The library's major database licenses, i.e., Gale, Ebsco, do not permit this.

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