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US flag Fair use

Courts today tend to collapse the four fair use factors into two questions: 

  • Is the use you want to make of another's work transformative - that is, does it add value to and repurpose the work for a new audience
  • is the amount of material you want to use appropriate to achieve your transformative purpose? 

If a use is not transformative, or if the amount you want to use goes beyond what you need to make your point, look at market availability. We can start with a few quick suggestions regarding common types of educational uses. Then we can look more closely at the fair use statute's four factors to see how they can help you for more difficult cases.

Coursepacks, reserves, learning management systems, iTunes U and other platforms for distributing course content

For transformative uses, use no more than you need to achieve your purpose. If you need to use materials in essentially the same way or for the same audience as the author intended, or you use more than necessary to achieve a transformative purpose, limit materials distributed in coursepacks, through reserves, learning management systems and iTunes U to:

  • single articles or chapters from longer works (works of 10 or more chapters total), or other small parts of shorter works or those with 9 or fewer chapters (10% or less); several charts, graphs or illustrations; small parts of works such as performances (audio, video)
  • copies of materials that a faculty member or the library already possesses legally (such as, by purchase, license, fair use, inter-library loan)

Always include

  • any copyright notice on the original
  • appropriate citations and attributions to the source
  • Section 108(f)(1) notice, because these materials are distributed most often through digital media

Limit access to students enrolled in a class and administrative staff, as needed. Terminate access at the end of the term.

Digitizing and providing access to images and audiovisual resources for educational purposes

If the use of the resources is transformative and the amount used is appropriate for the purpose, digitize them and make them available as needed, in accordance with the limitations below. In some cases where a use is transformative and the institution's materials are unique, fair use will support digitizing them and providing public access. But in other cases, digitized materials should be made available in accordance with the limitations below.

If the use is not transformative, for example, in the case of analog slide sets produced and marketed for an educational audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.

  • If your needs and the content of licensed digital resources significantly overlap: Acquire licenses to use the commercially availalble digital collections and digitize institutional holdings in accordance with the limitations below.
  • If there is little overlap in your needs and readily available digital collections, for example, if your materials are no longer available or are rare: Digitize and use institutional works in accordance with the following limitations:

Limit access to all multimedia resources, except low resolution small images or short clips, to students enrolled in a class and administrative staff. Terminate access at the end of the class term.

Faculty members also may use these works at peer conferences.

Students may download, print and transmit digitized works for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images and perform audio and audiovisual works in works prepared for course assignments, and may keep works containing them in their portfolios.

Digitizing and using other's works creatively

Students, faculty and staff who wish to use others' works in creative, transformative ways, may incorporate others' works into their own original creations and display and perform the resulting work in connection with or creation of:

  • class assignments
  • curriculum materials
  • remote instruction
  • examinations
  • student portfolios
  • professional symposia

While creative uses tend to be transformative, we still must be careful to use no more than needed to achieve the purpose.

Research copies

Making copies as part of the research process may or may not be transformative. Limit research copies to:

  • single chapters from works of 10 or more total chapters, or 10% of shorter works (works having 9 or fewer chapters total, or works that are not divided into chapters)
  • single articles from a journal issue
  • several charts, graphs, illustrations
  • other similarly small parts of a work (10%)