Course Materials and Fair Use: Fair Use

Introduction to Fair Use

"Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. "

Source: https://copyrightalliance.org/faqs/what-is-fair-use/

Regulations on Fair Use

• According to the article 24 of the Copyright Law of the People's Republic of China, the following use cases are equivalent to fair use.

          (1) use of a published work of another for purposes of personal study, research or appreciation;

          (6) translation, adaptation, compilation, broadcasting, or reproduction in a small quantity of copies, of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that such a work shall not be published or distributed.

          *附：中华人民共和国著作权法（中文版）

• US Copyright law sets forth four factors, all of which must be considered when determining whether a use falls under fair use. 
  Factor 1: Purpose & Character of Use
  Factor 2: Nature of Copyrighted Work
  Factor 3: Amount and Substantiality of the Portion Used
  Factor 4: Effect Upon the Potential Market

It is important to keep in mind that all the factors work together in balance. It is not all or nothing. Lack of one factor is not likely to disqualify a use for fair use. Likewise, a use may contain elements of all factors and still not qualify as fair use. 

The purpose in using the four-factor analysis is to weigh those factors as a whole to determine if the balance is tipped in the direction of fair use. This can be difficult to determine, but it also allows for a lot of flexibility for users. 

Copyright law provides a classroom exception in section 110(1) that allows instructors to display or show entire copyrighted works during the course of a face-to-face classroom session. This exception exists independently of fair use and may be a more applicable option for exposing students to copyrighted material. 

Also the American Library Association has a “Fair Use” Calculator that will walk you through a Fair Use evaluation: https://librarycopyright.net/resources/fairuse/index.php

Most instances of educational use will fall under Fair Use, using the materials only in the classroom does not automatically grant you permission to copy and distribute works. If copyrighted material is to be used for classroom presentations, distributing copies, writing articles, or posting to a Learning Management System (LMS), users should consider this carefully each time. There are two FAQs asked from our users below for reference.

• How do I know whether my use of copyrighted material in my own scholarship and class projects is fair?
  You will have to do your own fair use analysis, looking at the four factors described above. Are you using the copyrighted material for a new purpose or in a new way, to generate new insights and so on? Are you using an amount of the protected work that is appropriate to your transformative purpose? If you’re working in one of the areas where a code of best practices already exists, you may be able to find a good answer in the relevant code. You can also talk to a librarian to point you to useful resources and helpful experts on your campus.
• My library subscribes to a lot of commercial databases. Can I use material I find there in the same way I’d use material I find in hard-copies that the library owns?
  It depends. For most electronic materials, such as digital journal subscriptions, the terms of access to the materials are described in a contract between the library and the service provider. These terms can limit what users can do with electronic materials. Using automated programs to retrieve large numbers of articles or data from commercial databases could be prohibited, for example, even though such use might be fair if a contract weren’t involved. You should check with a librarian to see what limitations might exist before making unusual new uses of licensed materials.