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Copyright at Bryan College of Health Sciences

Basics: Fair Use

The Fair Use doctrine is often evoked whenever someone wants to use a copyright-protected work in an educational setting without the formal permission of the copyright owner. However, determining fair use is not so cut-and-dry: Section 107 of the copyright law lays out four factors that must be weighed in determining whether a particular use of copyrighted material is "fair."

Fair Use must be evaluated for all College use of copyrighted materials not covered by ownership, licenses, public domain or a Creative Commons license.  

  • Course eReserves: 
    • a librarian will determine if a work is covered by ownership, licenses, public domain or a Creative Commons license.  
    • Faculty will be asked to complete a Fair Use Checklist for each item not covered, in order to maintain compliance with the Fair Use doctrine.
    • The completed Fair Use Checklist will be kept on file in the Library.
    • If a work is used in eReserves in subsequent semesters, the Checklist will be required for each repeated use.
  • Canvas:
    • It is the responsibility of the faculty member to determine if the copyright status of an article to be posted within Canvas is covered by ownership, licenses, public domain or a Creative Commons license and to maintain appropriate compliance with College policies regarding Fair Use.
    • RightFind Academic can be used on campus to determine if licensing permission is covered by the College's Annual Academic Copyright License
    • A Fair Use Checklist will need to be completed and kept on file for each work not covered by ownership, licenses, public domain or a Creative Commons license. 
    • If an item is used repeatedly, a Fair Use Checklist needs to be completed for each repeated use.
    • NOTE that posting a link to an article or other document is always preferred over uploading a PDF.  By providing a hyperlink to content, copyright does not apply and you do not need to document fair use.  Always post a link, when available.

 

Fair Use in Photocopying

Fair use photocopying for educational purposes is influenced by another issue:

 -  Brevity, or how much of the work you use.

Brevity influences whether a particular photocopy is considered a fair use: photocopying a smaller portion of a work (a paragraph or two) is more likely to fall under fair use than copying an entire chapter.  But keep in mind that there are no hard and fast rules about how much of a work can be photocopied. Photocopying an entire journal article for educational use can fall within the fair use guidelines, if all other criteria support fair use. 

 

Fair Use: 4 Factors for determining Fair Use

Below are the four fair use factors listed in the the U.S. copyright law.  Any determination of Fair Use must take all FOUR factors into consideration.

    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.

      - Non-profit educational use is the easiest to be covered under fair use; most colleges, universities and non-profit educational institutions can easily claim fair use for this reason.

    2. The nature of the copyrighted work.

      - Factual or scientific materials tend to fit under fair use better than creative works such as fiction, poetry, plays, etc. - again the materials used in the health sciences environment tend to meet this criteria well.

Unfortunately after these two criteria, the guidelines become less clear:

  1. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    - How much of a work are you using? Are you using an entire journal issue, a large portion of the book (greater than 10%), most of the illustrations from an article or book? The greater the amount used, the less likely it is to be fair use.  NOTE that use of a single journal article does not violate the "amount" criteria.  

  2. The effect of the use upon the potential market for or value of the copyrighted work.

    - Can you easily purchase the copies that you need? Is this a consumable item such as a study guide that should not be reproduced? Are you repeatedly using something under fair use when you should be paying royalties?  Are you putting together a collection of articles in lieu of students purchasing a textbook with comparable information?

Adapted from "More Information on Fair Use," available online at https://www.copyright.gov/fair-use/more-info.html