Copyright and Fair Use in an Academic Environment: Faculty Handbook

What is Fair Use?

Fair use is the most significant limitation on the copyright holder's exclusive rights. there are no set guidelines that are universally accepted. instead, the individual who wants to use a copyrighted work must weigh four factors:

The purpose and character of the use:

• Is the new work merely a copy of the original? if it is simply a copy, it is not as likely to be considered fair use. Does the new work offer something above and beyond the original?
• Does it transform the original work in some way? if the work is altered significantly, used for another purpose, appeals to a different audience, it is more likely to be considered fair use.
• Is the use of the copyrighted work for nonprofit or educational purposes? the use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use. 

The nature of the copyrighted work:

• is the copyrighted work a published or unpublished work? unpublished works are less likely to be considered fair use.
• is the copyrighted work out of print? if it is, it is more likely to be considered fair use.
•  is the work factual or artistic? the more a work tends toward artistic expression, the less likely it will be considered fair use.

The amount and substantiality of the portion used:

• the more you use, the less likely it will be considered fair use.
• Does the amount you use exceed a reasonable expectation? if it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work.
• is the particular portion used likely to adversely affect the author's economic gain? if you use the "heart" or "essence" of a work, it is less likely your use will be considered fair.  

The effect of use on the potential market for the copyrighted work:

• the more the new work differs from the original, the less likely it will be considered an infringement.
• Does the work appeal to the same audience as the original? if the answer is yes, it will likely be considered an infringement.
• Does the new work contain anything original? if it does, it is more likely the use of the copyrighted material will be seen as fair use.

(page 9-10)

What Are the Rules for Fair Use for Instructors?

Copying by teachers must meet the tests of brevity and spontaneity:

• Brevity refers to how much of the work you can copy.
• Spontaneity refers to how many times you can copy.

According to the rule, the need to copy should occur closely in time to the need to use the copies. this is called the "one semester rule." if you use something for one semester it is likely to be seen as fair use. if you use something repeatedly, it's less likely to be considered fair use. the expectation is that you will obtain permission as soon as it is feasible. using something over a period of years is not within the spirit of the guidelines.

Special works: 

• "Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience." A child's book is an example.
• Special works should never be copied in their entirety.
• An excerpt of no more than two pages or 10 percent, whichever is less, is the rule for special works. the use of the copies should be for one course at one school. the copies should include a notice of copyright acknowledging the author of the work.

NOTE: it is recommended that teachers, faculty, or instructors consider both the special guidelines for instructors and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.

What Can Be Copied?

• A chapter from a book (never the entire book).
• An article from a periodical or newspaper.
• A short story, essay, or poem. one work is the norm whether it comes from an individual work or an anthology.
• A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.
• Multiple copies of a poem of 250 words or less that exist on two pages or less or 250 words from a longer poem.
• Multiple copies of an article, story, or essay that are 2,500 words or less or excerpts up to 1,000 words or 10 percent of the total work, whichever is less.
• Multiple copies of a chart, graph, diagram, drawing, cartoon, or picture contained in a book or periodical issue.

What Should Be Avoided? 

• Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals.
• Copying the same works from semester to semester.
• Copying the same material for several different courses at the same or different institutions.
• Copying more than nine separate times in a single semester.

(page 10-11)

When is Permission Required?

• When you intend to use the materials for commercial purposes.
• When you want to use the materials repeatedly.
• When you want to use a work in its entirety and it is longer than 2,500 words.

How Do I Get Permission?

For materials to be used for Bergen Community College courses, you must obtain permission yourself.

(page 11)

The Educational Multimedia Guidelines provide guidance for the use, without permission, of portions of lawfully acquired copyrighted works.

Definitions

• the guidelines are intended to apply to educational multimedia projects that incorporate educators' original material, such as course notes or commentary, together with various copyrighted media formats, including motion media, music, text material, and graphics illustrations.
• the guidelines are voluntary and do not have the force of law.
• if you follow the guidelines, it is highly likely that your use is fair use. The guidelines are safe minimums.
• the newly created work that includes copyrighted material may only be used for learning activities. other uses, such as selling the work commercially, require permission.

Time Restrictions

The fair use of copyrighted material in multimedia projects lasts for two years only. After two years, obtain permission before using the project again.

Types of Media and Permissible Amounts 

• motion media: up to 10 percent of the total or three minutes, whichever is less.
• text material: up to 10 percent of the total or 1,000 words, whichever is less. An entire poem of less than 250 words may be used, but no more than three poems by one poet or five poems by different authors in an anthology. For poems exceeding 250 words, 250 words should be used but no more than three excerpts from one poet or five excerpts from different poets in the same work.
• music, lyrics, and music video: up to 10 percent of the work but no more than 30 seconds of the music or lyrics from an individual musical work.
• illustrations or photographs: no more than five images from one artist or photographer. no more than 10% or 15 images, whichever is less, from a collection.
• numerical data sets: up to 10 percent or 2,500 fields or cell entries, whichever is less, from a copyrighted database or data table.
• Copying of a multimedia project: no more than two copies may be made of a project.

When Should You Get Permission?

• When you intend to use the project for commercial or non-educational purposes.
• When you intend to duplicate the project beyond the two copies allowed by the guidelines.
•  When you plan to distribute the project beyond the scope of the guidelines.

Copyright and Electronic Publishing

• The same copyright protections exist for the author of a work regardless of whether the work is in a database, CD-rom, bulletin board, or on the internet.
• If you make a copy from an electronic source, such as the internet, for your personal use, it is likely to be seen as fair use. However, if you make a copy and put it on your personal Web site, it less likely to be considered fair use.
• The internet is not the public domain. There are both uncopyrighted and copyrighted materials available. Assume a work is copyrighted.

Tips for the Internet: 

•  Always credit the source of your information.
• Find out if the author of a work (e.g., video, audio, graphic, icon) provides information on how to use his or her work. if explicit guidelines exist, follow them.
• Whenever feasible, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received.