Copyright Policy and Resource Guide Course Packs & Fair Use

What if my course pack material is not of the type or amounts in the guidelines above, can I still use it without having to obtain the copyright owner's permission?

Maybe. The guidelines above are a simple way to be sure that you stay within the meaning of fair use. The Fair Use Doctrine permits use of copyrighted material for comment and criticism; scholarship and research; teaching or news reporting. However, simply naming one of these purposes does not transform an infringement into a fair use. Each use must qualify as a fair use and some analysis is required here.

In determining whether a proposed use is "fair" it is necessary to consider the following factors [from What Educators Should Know About Copyright, by Virginia M. Helm; Bloomington, IN, Phi Delta Kappa Educational Foundation, 1986]:

  1. The purpose and character of the use. This factor focuses on whether the proposed use of the work is educational, non-profit, commercial, personal or transformative in nature. (Note that where the proposed use is for purposes of generating income, i.e. commercial, the fair use analysis does not apply and one must obtain permission before using the copyrighted material.) Uses that are educational, personal, non-profit or transformative in nature tip the scale in favor of a fair use finding.
  2. The nature of the copyrighted work. Uses that support a "fair use" finding are those which are published factual works, and in some cases, a mixture of factual and imaginative work. Purely imaginative works are less likely to support a finding of fair use. For example, photocopies made of a newspaper or newsmagazine column are more likely to be considered a fair use than copies made of a musical score or a short story.
  3. The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of 1) the amount of the portion used in relation to the whole work and 2) the relative importance of that portion to the work. Here, we address both the quantitative and qualitative value of the proposed use. Where a portion represents the central message or critical ideas of the whole work, a fair use finding is less likely than if that portion represents less recognizable or less important concepts in the work.
  4. The effect of the use on the potential market for the copyrighted work. This factor is slightly more complex than the previous three. Here we consider what effect the proposed use would have on the market for the protected material. An effect that would reduce the market or profit for the copyright owner is less likely to support a fair use finding, particularly where all other factors are weak or simply not supportive of fair use at all. However, there are other circumstances under which this factor will have no affect at all on a finding of fair use on all other factors. For example, where an original copyrighted work is out of print or otherwise unavailable, no ready market for permission exists or the copyright owner is unidentifiable, an effect on the market, even a substantial one, does not the make the use an infringement, when all other factors point to fair use.

Note: Out of print does not mean free to copy without permission. When your intended use includes material from an out of print source, the "fair use scale" is tipped in your favor. It does not necessarily mean that you may freely use the material. All other factors must also be analyzed.

Free Isn't Necessarily Fair

Look at the first factor-purpose and character of the use. This is where many of us get tripped up. No single factor is determinative by itself. However, we often interpret non-commercial, educational or non-profit uses as fair on their own without giving any consideration to the remaining factors in the fair use analysis. For instance it is a common misconception that we do not need permission to provide free copies of copyrighted material.

It seems intuitively appropriate that we should not need permission for a use from which we will make no profit. However, our intuition betrays us here. This example taken to its extreme would allow us to provide entire copies of complete works to anyone who requested them so long as our purpose was non-commercial or educational. This unfairly deprives the rightful owner of revenue from potential sales of her work. Imagine a photocopy of your latest book being provided free of charge to every person who requested it!

Consider every factor when analyzing a fair use issue. The result may pleasantly surprise you and if it doesn't, timely requests for permission are usually responded to in a timely manner.

The examples below illustrate simple but common fair uses in the academic setting. Each example is followed by the analysis used to arrive at a finding of fair use. Note that although these examples are elementary, more complex questions of fair use involve the same analysis.

Comment and Criticism
e.g. A faculty member writes a book review for a scholarly journal and wants to quote the book at length.

Purpose & Character Nature of Copyrighted Work Amount Effect on Market 
Comment & Criticism Imaginative (but use is transformative- i.e. recontextualized) Insubstantial in relation entire book

Little to no cumulative effect on market (may in fact aid in publicizing the book)

Scholarship and Research
e.g. A student copies a chapter from a textbook. He uses the information to write a research paper.

Purpose & Character Nature of Copyrighted Work Amount Effect on Market
Educational Factual; unimaginative Insubstantial in relation to the entire book Possible small cumulative effect on market, however first three factors tip strongly in favor of fair use and small possible effect on market does not change fair use finding

e.g. A professor copies an article from a newsmagazine which illustrates a point she plans to make in a lecture. She copies the article and distributes it to the students in her class.

Purpose & Character Nature of Copyrighted Work Amount Effect on Market
Educational Factual Entire article If the article is for "one time use" only the effect on the market is small; (note guidelines for classroom photocopying) educational purpose and factual nature of work lean heavily in favor of fair use

News reporting 
e.g. The editor of the college newspaper summarizes a recent article appearing in the local newspaper and prints the summary in the staff newsletter.

Purpose & Character Nature of Copyrighted Work Amount Effect on Market
Non-profit; educational Factual Summary of the article insubstantial and transformative in nature when compared to the whole work Little to no effect on market; market for work decreases as news becomes "stale"