Fair Use

The cornerstone of the Copyright Act is the concept of fair use, a practice that is common on college and university campuses, particularly in their libraries. Under the act, copyright attaches as soon as the original works of authors are placed into tangible media. Neither registering works with the U.S. Copyright Office nor placing copyright notices is required in order to create copyright protection for original works. Even so, placing copyright notices on works is beneficial, because notice to the public is necessary in most cases in order to claim statutory damages and attorney fees for copyright infringements.

Determinations as to whether the copying or reproduction of the original works of others is a Copyright Act violation begins with the act's broad exemption that “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright” (Copyright Act, § 107). While the act allows for the use of copyright protected material for these purposes, these functions are still subject to the act's four fair use factors:

Considerable litigation, frequently involving publishing houses, has resulted in the sharpening of the definition of these four factors for the purpose of calculating the appropriate balancing of the factors where some, but not all, have been violated.

The Copyright Act permits instructors and students at nonprofit educational institutions to perform and display copyrighted material in face-to-face teaching activities. Excluded from this exemption are audiovisual works that are not “lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made” (Copyright Act, § 110(1)). The definition of face-to-face instruction has been extended to include e-mail courses and classes transmitted by means of interactive digital networks by instructors at “accredited nonprofit educational institutions” (Copyright Act, § 110(2) (A)). Accreditation is defined for postsecondary institutions as certification provided by regional or national accreditation organizations approved by the Council of Higher Education Accreditation or the U.S. Department of Education.

The e-course exemption allows instructors both to perform and display, by means of digital technology, entire nondramatic literary and musical works as reasonable, and limited portions of any type of audiovisual work. This expanded range of educational use of materials is inapplicable to material designed for the distance-learning market or works not lawfully made or acquired; materials [Page 174]not directly related to teaching content and limited to reception for students in classes for which the transmission is being made; materials that are not analogous to those of a typical classroom; transmissions that lack safeguards to prevent student retention and redistribution of transmitted material; or the making of digital copies that are used for other than authorized transmissions. While the Copyright Act permits the making of digital works and digitizing them to portions of analog works, the conversions of analog or print works into digital formats is impermissible unless no digital version of the analog version is available or the “digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for “lawful transmission under section 110(2)” (Copyright Act, § 112 (f)(2)).

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