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Copyright Law and Higher Education

  Copyright Law and Higher Education

Fair Use

There are four basic factors to consider when deciding whether a use constitutes fair use:
  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Multiple copies (not to exceed one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:
  • The copying meets the tests of brevity, spontaneity, and cumulative effect and
  • Each copy includes a notice of copyright

Brevity

The Agreement on Guidelines for Classroom Copying in Not-for-Profit Education Institutions Links to an external site. provides suggestions for minimum standards. Keep in mind these are suggestions only. When using material think about the amount of information you wish to use in comparison to the whole, the four fair use factors, and the context in which you are using the information.

  • Poetry: A complete poem if less than 250 words and if printed on not more than two pages or from a longer poem, an excerpt of not more than 250 words.
  • Prose: Either a complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
  • Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
  • "Special" works: Special works, defined as certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety.
  • "Special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof may be reproduced.

What amount of the work do you want to use?

There are no clear guidelines for what amount of a work constitutes fair use; it must be considered in relation to the whole.  In general, the less used, the more likely you can claim fair use.

The Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions Links to an external site. provides minimum standards for educational fair use:

  • One chapter from a book (less than 2,500 words) or an excerpt from a book (10% of the work; not more than 1,000 words)
  • One article from a single journal or newspaper issue (less than 2,500 words)
  • One short story (less than 2,500 words), essay (less than 2,500 words), or poem (250 words or less) from a collection

These are only suggestions; use of less or more may or may not qualify for fair use.  The context of the use and all of the fair use factors must be considered before that determination can be made. 

Spontaneity

  • The copying is at the instance and inspiration of the individual teacher; and
  • The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect 

  • The copying of the material is for only one course in the school in which the copies are made.
  • Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
There shall not be more than nine instances of such multiple copying for one course during one class term.

Prohibitions
  • Copying shall not be used to create, replace or substitute for anthologies, compilations, or collective works (Course packs).
  • Consumable works, which include workbooks, exercises, standardized tests and test booklets and answer sheets cannot be copied.
  • Cannot substitute for the purchase of books, be directed by higher authority, or be repeated from term to term.
  • Cannot charge more than the actual cost of the photocopying.
  • If the material is being submitted to the bookstore for duplication, rather than being handed out in class; the material must be copyright cleared by the department. The bookstore does not sell course packs at cost.  If materials submitted for duplication are not solely the product of the faculty member, the bookstore cannot produce until the course pack until all copyrighted materials have been identified and cleared. Copyright clearance can take from a few days to 8 weeks, dependent on the number of clearances and the sources of the information to be cleared.

Sources: NVC Library, Davidson College Library Links to an external site. guides

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