Faculty increasingly find themselves in situations which may involve the legitimate fair use of copyrighted works. The examples below were selected from current practices in higher education and, depending on the facts, may or may not pass scrutiny under the fair-use test.
The future undoubtedly will expand on the need for appropriate fair use as a part of education. Faculty will have to consider and balance the four factors in situations such as the ones that follow.
Fair use is a flexible concept intended to be used. In any situation, the careful evaluation of the four factors will tell you whether your use is “fair” or whether you ought to seek permission from the copyright owner.
The following scenarios are intended to emphasize the growing range and escalating complexity of copyright and fair-use issues on college campuses. Many readers may hope that these scenarios will give them “the clear answer to the fair-use dilemma.” However, such readers will experience some inevitable degree of frustration: rarely does the law provide a clear answer that fits all cases. A fresh balancing of the four factors of fair use is the most reliable and defensible decision-making method.
A professor has been told by students that it is difficult to obtain reserve materials because of the large number of students enrolled. As an alternative, he scans several journal articles onto the campus network and instructs the students on how to access them so that they may complete the class assignments.
Analysis: Access restrictions can have the greatest influence on tipping the factors in favor of fair use. A problem with making text available on any network is that it can be accessible by readers far beyond the intended audience of students registered in the class. Thus, restrictions on access through passwords or other systems can enable the professor to argue that the purpose is solely to benefit the students and not to provide access for others.
Restrictions can also limit the potential adverse effect on the market for the original. By limiting the range of users who may find the document, the professor can minimize or eliminate any possibility that someone will retrieve the work from the network instead by bypassing web filters of purchasing a copy. Some critics of electronic reserves have argued that the educational purpose and the minimal market effects cannot be controlled because the electronic medium allows users to print, download, and transmit copies at little cost or effort and thereby undermine the restricted access.
The professor also must watch closely the nature of the material posted on reserves and the amount of material from the original source put on reserves.
A professor teaches a course in which she occasionally uses a piece of music, shows a picture, or plays a piece of videotape. She has lawfully obtained all of these materials and clearly may use them in face-to-face teaching under the Copyright Act. But the professor would like to reproduce these short items onto one compact disk or DVD-RAM in order to prevent their loss or deterioration, keep them organized, and show them in the class by using a single piece of equipment.
Analysis: Guidelines for such uses are currently the subject of negotiations among diverse interest groups under sponsorship of the Consortium of College and University Media Centers. In general, those guidelines would allow the creation of such a multimedia work in the name of fair use and allow its retention and use in the classroom for up to two years without permission.
One of the complex fair-use issues for multimedia production has been an understanding of its potential effect on the market for the originals. Even brief excerpts, reproduced into digital format, are sometimes said to directly undermine the ability of the creator or publisher to market or license such excerpts. Thus, making the copies would directly erode that potential market. The Digital Living Network Alliance (DLNA) has made this a more prominent issue by making it easier for people access multimedia regardless of the manufacturer or device. While DLNA servers are great for consumers they tend to complicate enforcement of Trademark law.
Also problematic is the “nature” of the different works. Some materials may be of a factual or scholarly nature and thus more amenable to fair use. Other materials used in multimedia are often professional photography, music, or motion pictures that may have a significant public market.
Students in the Twentieth Century U.S. History course are asked to create an “electronic term paper” using lawfully acquired resources from the institution’s library and media center. While doing research, he finds a book with just the information he needs and photocopies the bibliography and several pages of images and text. He takes the photocopies to the student computer lab and scans the material into his electronic term paper.
Analysis: Multimedia production in the hands of students solely for an individual term project will more easily pass fair-use scrutiny. If the use is limited to the one-time project, the student can easily argue that the purpose is solely educational. Short clips of non-fiction works may also receive favorable treatment under the “nature” and “amount” factors.
Moreover, because the work is for one-time use only, and not for further reproduction, broadcast, or other dissemination, the copyright owners of the materials are not likely to find a market for licensing under these circumstances. Thus, the isolated individual uses may have no significant adverse effect on the market.
Downloading or Printing a Document from the Internet
A professor is conducting research by finding materials on the Internet and locates a report that is directly relevant to his current study. The document was made available on the Internet with the copyright owner’s permission, and the professor had lawful access to it. For research purposes only, the professor wants to download a copy of the document to a tablet computer or print a copy on the attached printer.
Analysis: The Internet provides access to a wealth of original material and, although it is freely and easily accessible, we must assume that original materials on the Internet are protected by copyright until we learn explicitly that the copyright owner has dedicated the materials to the public domain, or the copyrights have expired. Therefore, the fair-use limits for materials found on the Internet are essentially the same as the fair use of materials disseminated by any other means.
Single copies of short items for a person’s own study may fall within fair use. If a work is freely available on the Internet, making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed. Nevertheless, some publishers have argued that the potential market for charging Internet users for each copy means that any copying hinders the market. In the meantime, copying of works that are freely accessible to the public for personal uses only will likely satisfy the “purpose” and the “effect” factors of fair use.
As with photocopying, one might reasonably conclude that the “nature” factor would favor uses of non-fiction rather than fiction, and that the “amount” factor might reasonably favor copying excerpts of longer works or copying short essays or articles rather than copying an entire book or other longer piece.
Developing a Slide Collection
A professor photographs and makes slides of a number of reproductions of artworks in a book on Italian painting and sculpture. She plans to show the slides to the students enrolled in her course.
Analysis: This scenario is much more problematic than it appears. The purpose may be clearly educational, but when a professor copies a photograph, he or she is reproducing the entire work of the copyright owner. Fair use seldom allows the reproduction of an entire copyrighted work. Further, art is highly creative, so under the “nature” factor a court may not conclude that it is the type of work meant to be reproduced to serve the purposes of fair use.
Further complicating the scenario is the contention that a photograph of a work of art actually embodies two copyrights: the first is the copyright to the original art; and the second is the copyright to the photograph of the work of art. By that standard, even if the original painting is now in the public domain, the photograph of it may still be under copyright protection.
A textbook with multiple art images is likely based on the work of many different photographers. Perhaps the most feasible method for arguing that the “amount” and “effect” factors may weigh in favor of fair use is by reproducing only a small number of images from any one textbook. Adverse effect on the market may also be minimized if the publisher does not sell either select slides or a set of slides from the textbook.
Adapting Materials for Students with Disabilities
A university serves many students with various disabilities. Certain works need to be adapted to serve their needs, perhaps by creating large print copies of some materials or by creating a closed-captioned version of a commercial educational videotape. The copyright owners have not authorized anyone to make such versions available for purchase. In addition, some of these adapted materials might be electronically delivered to disabled students in their homes.
Analysis: Adapting materials for students with disabilities raises several problems under traditional fair-use analysis. First, the students generally need the entire work, so the “amount” factor will often weigh against fair use. Students also need a wide range of materials, often including works of fiction and feature release motion pictures.
In some such instances, the “nature” of the material can weigh against fair use. Although the copyright owner may not currently market a version of the work adapted for students with disabilities, the owner may nevertheless argue that making and providing any copy under any circumstances will deprive the owner of a potential sale and create an adverse effect on the market. The making of a single copy for one-time use may have at best a limited effect on the market, but anytime such a work is disseminated in copies or otherwise distributed or broadcast to the students, the effects on the market will be compounded.
Fair-use law may ultimately protect the adaptation of short works or excerpts from longer works as may be needed to serve the requirements of specific students enrolled in specific courses. Fair use is less likely to encompass the adaptation of a full textbook or full motion picture for long-term retention in anticipation of unspecified needs.
The complexities of fair use require that each member of the university community learn to apply the four factors and make a sound judgment about the permissibility of quoting, photocopying, downloading, and making other uses of protected works. Invariably, however, each of us will encounter situations where we need to obtain permission from the copyright owner. Common examples where permission is ordinarily required include photocopying an entire article or entire book chapter into a course reader that students will purchase, or mounting substantial text or graphic work onto a publicly accessible World Wide Web page.
When permission is necessary, you must contact the copyright owner or the owner’s authorized agent. Often the copyright owner will be named in the formal copyright notice accompanying the original work. Such notices are no longer required to obtain copyright protection, so many works often lack the notice or include the name of someone who is not the actual or current copyright owner. Nevertheless, you should logically begin your search for the copyright owner by directly contacting the author or publisher. Reference librarians can be extremely helpful for finding names and addresses. You will also find that the quest for the copyright owner can be simplified by using your telephone to call the parties and to ask direct questions about ownership and rights of use.
The Copyright Clearance Center (CCC) can also simplify the process by acting as the agent on behalf of thousands of publishers and authors to grant permission.
Please keep in mind that copyright owners have wide discretion when responding to your request for permission. Your permission may be granted or it may be denied. It may be granted, but only on condition of paying a fee. The fee may be modest or it may be exorbitant. Copyright owners also have no obligation to respond at all. For most common uses of materials for educational and research purposes, you will often find that copyright owners will be cooperative and will understand your needs.
The following is a sample letter, with instructions, that you may adapt when requesting permission. Please remember that a telephone call before sending the letter can give you the exact name and address of the person to contact and might even give you an immediate answer to your request. Oral permission granted over the telephone is legally valid, but good practice requires that you document the permission with a letter that the grantor will sign and return to you.