Copyright and Fair Use: The Basics

Resources for Basic Copyright Information

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Copyright and Fair Use

US Copyright law

Copyright Flow ChartCopyright law protects the exclusive rights of a holder to authorize others to copy, create derivative works, distribute, publicly perform, or publicly display a work. Most copyrights expire 120 years after creation. The work is considered in the public domain after that time and free to use. Works created by the federal government are not subject to copyright and are permissible. If faculty wish to use copyrighted material in an online course the use must fall under the provisions of the TEACH Act or be considered "Fair Use". If the use does not meet one of those criteria, faculty must obtain permission (written in most instances).

TEACH Act

The TEACH Act (Section 110) of the copyright law outlines provisions for online courses. If the copyright issue does not fall under provisions of the TEACH Act it may still be allowable under "Fair Use". In order to claim use under the TEACH Act, a number of obligations must be met. In order to perform or display works in an online class it must be:

  • used under your supervision
  • part of the class session
  • part of instructional activities
  • directly related to teaching content

Three additional requirements must be met.

  • the online class must be restricted to enrolled students
  • there must be reasonable effort to prevent students from being able to save or print the work
  • there must be a general copyright warning in the course site

Fair Use

"Fair Use" describes the condition where limited use of copyrighted material is allowed without obtaining express permission from the rights holder. There are four factors when determining "fair use" of copyrighted items:

  • the purpose of the use - used to teach or create something new OR used for commercial purposes
  • the nature of the copyrighted work - fiction OR non-fiction
  • the amount of the work used - small portion OR entire work
  • the effect of the use on the market for the copyrighted work - labeled by the Supreme Court as "the single most important element of fair use"

Additional Material

Association of Research Libraries - Know Your Copy Rights Site produced by the Association of Research Libraries to make faculty members aware of copyright issues and best practices.

University of Minnesota - Thinking Through Fair Use an analysis tool that provides a checklist for "Fair Use" considerations

Fair Use Statute

United States Code, Title 17, Section 107

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Step 1 - Determining If Your Use is Fair Use

Other Fair Use Tools

Deciding if what you want to do falls within the Fair Use can be difficult.  Following are some links to checklist and evaluators.  See if one of them can help you with this decision.  And, to be safe -- if it has an option to print the results, do so.  Then you can file it with your materials to show that you did your best to follow the law based on the expertise and advise of organization that should know.

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