Copyright FAQ
Determining Fair Use
The "fair use" exception to copyright law allows non-owners of copyrighted work to copy and use another's work for educational, research or non-profit purposes in limited instances without the permission of the copyright owner.
In determining whether a planned use qualifies as a "fair use", the following four factors must be evaluated:
- The purpose for which the work is used (non-profit, teaching and research uses generally are allowed, whereas commercial uses generally are not);
- The nature or characteristics of the work (the use of published or non-fiction works generally is favored over the use of unpublished or fictional/highly creative works, for example);
- The amount and substantiality of the work used (which includes an evaluation of the quality and the quantity of the work you want to use, so be wary of using large portions of a work or portions of the work that are considered key or central to the work); and
- The effect of the use on the marketability or value of the work. (If the use negatively affects the sale or value of the work, it is rarely allowed, so it is important to limit the number of copies and to not engage in repeated or long term use of the work without obtaining permission).
No
There is no blanket exception under copyright law for educational institutions or educational uses. Although many educational uses fall within the fair use exception, the mere fact that students, professors or researchers plan to use copyrighted works in an educational setting does not, in itself, exempt them from liability under copyright law.
Are there any hard-and-fast rules to follow when evaluating fair use?
Applying the four factors can be difficult, especially when you are trying to determine how much of the work you can use or whether your planned use will affect the work's marketability or value. Unfortunately, copyright law does not provide hard-and-fast rules. (The four factors are intended to be flexible so they can be applied to all the different types of potentially copyrightable works.)
That having been said, it generally is acceptable for educators to engage in limited copying and use of another's work. For instance, it generally is appropriate for educators to make single copies of any of the following for use in their research and teaching: a chapter from a book; a newspaper or journal article; a short story, essay or poem; a cartoon, picture, chart or diagram.
It depends on the terms in the subscription agreement, but probably not.
Streaming movies for educational purposes is a confusing issue. Even though it may be permissible under copyright law, the subscription agreement may prohibit the activity under contract law. Copyright law only requires the movie to be “lawfully” acquired in order to use it in the classroom. If an instructor purchases a streaming service subscription, such as Netflix, then the “lawfully acquired” criterion has been met.
Unfortunately, when an instructor signs up for a streaming service account, the instructor is essentially waiving all rights under copyright law, and agreeing to be bound by the subscription agreement, which is governed by contract law. An instructor will need to review the terms of the subscription agreement which now governs the situation.
The subscription agreement is a contract and the promises made in the contract must be kept. Most subscription agreements use language that allows the personal, non-commercial use of the streaming service. Unfortunately, most subscriptions agreements prohibit the public performance of movies available through the streaming service.
Let’s review the Netflix Terms of Use as presented on their website on July 28, 2015.
Netflix Service- You must be 18 years of age, or the age of majority in your province, territory or country, to become a member of the Netflix service. Individuals under the age of 18, or applicable age of majority, may utilize the service only with the involvement of a parent or legal guardian, under such person's account and otherwise subject to these Terms of Use.
- The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances.
The bolded text authorizes personal, non-commercial uses and prohibits public performances, which requires an instructor to understand what a public performance is, as related to the classroom. The best way to define these words is through copyright law which identifies two scenarios as to what constitutes a “public” performance. The first one evaluates the location and the second one evaluates the audience, irrespective of the location.
- A public performance is any performance in an area open to the public. If the location is a public area it automatically results in any performance being conducted there as a public performance. Whether or not a fee is charged to view a performance is irrelevant when the event takes place in a public forum.
- A public performance is also defined as a performance in any place where a substantial number of persons outside the normal circle of family or social acquaintances is gathered. The event is usually not open to the public, even though it could occur in a public area that has be reserved, such as a classroom for enrolled students of a course. In these situations, the composition of the audience is evaluated.
Basically, you can only use the service to stream movies into a private setting for your family and friends to view. This is typically referred to as “personal use” rights. The classroom is open to anyone who wants to enroll in the class, so it would be considered an area open to the public. Thus, any performances in the classroom would be considered a public performance. If for some reason the classroom is not considered an area open to the public, but rather a private setting reserved for only enrolled students, the students are not considered family or social acquaintances of the instructor under the public performance definition in copyright law. Therefore, any performances would still be considered public performances in the classroom.
If the streaming service is related to an institutional account that the college or university has acquired the right to use through a subscription agreement, then the terms of this subscription agreement must be reviewed to determine what rights have been obtained. Although Netflix did not offer an “educational” subscriptions at the time this memo was written, other streaming services may offer such a subscription. If so, you need to review the terms in the educational subscription agreement to determine if you have the right to stream movies into the classroom.
The language in the terms of service or subscription agreement for any movie streaming service needs to be carefully reviewed to determine if public performances are permitted in the classroom.
Yes, but those instances are limited.
Three considerations help guide educators in determining whether and when they may copy another's copyrighted work for their students: brevity, spontaneity and cumulative effect.
- Brevity: relates to how much of the work is being used. Is it a single poem from an anthology? Is it a single drawing or diagram from a work containing many drawings and diagrams? Is it a portion of a lengthy research article? Short or partial works generally satisfy the brevity requirement. In addition, complete copies of some works (poems, stories and children's books, for example) may also satisfy the brevity consideration, provided they are not too lengthy.
- Spontaneity: relates to the timing of the decision to use a work. It is not unusual for educators to discover works they would like to share with their students while a course is ongoing. In such instances, there often is not adequate time to obtain permission to use the work from the copyright owner. The use of the work in such situations generally satisfies the spontaneity consideration.
- Cumulative effect: is more of a "big picture" consideration. It requires an evaluation of how much material is being provided without the copyright owners' permission and how much use is being made of the material before permission is finally obtained. For instance, although the brevity consideration above may allow for the copying of a poem or story for distribution in class, cumulative effect would prohibit the distribution of more than one poem or story by the same author or the distribution of several poems or stories by several authors (which begins to resemble a course pack). Similarly, although the spontaneity consideration above may allow for the copying of a journal article for distribution to this term's students, the same article may not be distributed in successive terms without permission. Please also see the obtaining copyright permissions FAQ for further information in obtaining permissions.
Yes.
Despite the fact that they are so readily available to so many people, materials on the Internet are protected by copyright, too, and the fair use restrictions for the use of Internet materials are no different than for other materials. As with other materials, downloading single copies of works found on the Internet for your own personal use is likely to be considered a fair use.
No.
The TEACH Act, the distance education update to the performance and display restrictions in copyright law, is not intended to limit or change the scope of fair use. In fact, fair use will continue to play a role in distance learning because it applies to the many distance education transmissions not covered by the TEACH Act. See the TEACH Act FAQ for more information.
Obtaining Copyright Permissions
Copyright owners have several exclusive rights, including the right to copy, distribute, perform or display their works or create derivatives of their works. If non-owners wish to use copyrighted works and the "fair use" and other exceptions to copyright law do not seem to apply, the non-owners must identify and contact the copyright owners for permission to use the work(s).
There are several different ways to identify copyright owners: contact publishers; conduct Internet searches using the author's name; or contact one of the many online organizations that assist in identifying copyright owners and securing permission from them. The U.S. Copyright Office also maintains records of all registered copyrighted works. Its databases can be searched for a fee, but searching this database will be fruitful only if the copyright holders registered their works with the office and have not since transferred their copyrights to other persons or entities.
Contact the owner in writing. Even if your initial contact is via the telephone, you should follow up in writing via email, letter, or fax, so you can fully describe the nature of your request and maintain a written record of it. Allow several weeks for a request to be processed and know, in advance, whether you are willing to pay a royalty or licensing fee. Minnesota State faculty and staff members need to obtain the approval of their campus intellectual property coordinators before committing to pay a royalty, license, or other fee to the copyright owner.
There is no "right way" to contact an owner, but some owners have preferred or required procedures for permission requests. Failure to follow these procedures may lead to a delayed response or no response at all, so follow all instructions and use permission request forms where provided. If there is no prescribed method, specifically describe your proposed use (who will be using or viewing the work, how you plan on using the work, whether you want to use the entire work or only a portion of it, etc.); agree to identify and acknowledge the owner in whatever manner the owner prefers; and specify the amount of time for which you would like to use the work. Keep copies of your requests for permission, maintain detailed records of your attempts to secure permission, and save all responses from owners. If you choose to retain the services of a third party vendor permissions clearinghouse, the logistics of how to apply for permission will be handled by the clearinghouse.
If you are unable to obtain permission to use the work, consider using an alternative work or use the selected work in a more limited manner that keeps you within the limits of "fair use".
The TEACH Act
The Technology, Educational and Copyright Harmonization Act (TEACH Act) passed in 2002, is a revision to the section of copyright law that deals with the performance and display of copyright protected works in distance education settings. It was intended to bring the distance education rules relating to the performance, showing and display of copyrighted works more into line with the rules for face-to-face classroom instruction. Although the TEACH Act provides some expanded opportunities for educators in distance education settings, restrictions still abound and many educators find themselves relying on the more established "fair use" rules to guide them in their decisions about when it is appropriate to use another's work.
Visit the Copyright Guidelines page to learn more about general TEACH Act guidelines.
The TEACH Act applies to educators involved in all forms of distance education:
- courses taught via interactive television with some or all of the students in a remote location;
- web-based "virtual classrooms" where there is no face-to-face classroom instruction;
- and other settings that rely on the electronic delivery of educational materials.
No.
The TEACH Act applies only to accredited non-profit educational institutions or governmental bodies that have policies on the use of copyrighted materials and provide information/training to their faculty, students and staff about copyright. The institutions also must have technology in place that will reasonably prevent the recipients of transmitted material from distributing the material or retaining the material after a course has concluded.
The TEACH Act allows educators to deliver more materials electronically than was allowed under the old law. Specifically, educators now may perform, show, or display copyrighted works, or portions of copyrighted works (depending on the nature of the work) to students in remote locations, including non-dramatic literary works; non-dramatic musical works; reasonable and limited portions of other works (such as films, videos or dramatic musical works like opera, musicals and music videos); and other copyrighted works such as still images (as long as the display of such works is in an amount comparable to that which is typically displayed in the course of a live classroom session).
For example, under the TEACH Act, educators involved in distance education may perform a dramatic reading of a poem or short story for their students, just as they can with students in a face-to-face setting. They may not show an entire movie to their students (the Act only allows for the display of "reasonable and limited portions" of dramatic works) even if it is directly related to course content and even though they could show the entire movie to students in a face-to-face setting.
A number of restrictions govern the electronic delivery of these works. These include the condition that the performance or display of the work be made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session. The Act also mandates that the transmission be made solely for students officially enrolled in the course and, to the extent technologically feasible, be limited to such students. For additional information on restrictions, see our Copyright Guidelines.
The TEACH Act refers to "systematic mediated instructional activities," which refers to the activities educators would engage in during the course of actual class time instruction, as opposed to activities educators might assign as part of the students' work outside of class.
Under the Act, educators engaged in distance education may only perform, show or display copyrighted works if they are an integral part of a class session offered as a regular part of the systematic mediated instructional activities of the college or university.
Put simply, educators may not electronically deliver works for student viewing outside of regular classroom time (unless, as indicated below, making the works available to the students qualifies as "fair use", such as in the case of an electronic reserve). Faculty members should always consider the market impact of making materials available electronically for students. If making the materials available electronically eliminates the need for students to have to purchase the materials, problems may arise under the TEACH Act and copyright law, generally.
Educators still may rely on "fair use" when making a determination as to whether they may use copyrighted works in the electronic classroom. The numerous conditions and restrictions in the TEACH Act can make it difficult to apply. In addition, as discussed above, the Act is limited to specific types of institutions and specific educational activities. If your use does not fall within the specific limitations of the TEACH Act (or if applying the Act seems just too unwieldy), use the "fair use" rules instead.