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Open Textbooks, OER & Other Open or Free Resources for Faculty: Fair Use Guidelines

A guide to exploring open textbook options for faculty.

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Determining Fair Use

Fair use is a doctrine of U.S. copyright law which gives exceptions to certain uses of copyrighted materials, which would otherwise be copyright infringement. To determine if fair use applies to your use, the four fair use factors must be applied. 

This checklist also available as a Word document you can download and type into.

Instructions:

  • The checklist is a tool that allows you to perform a rigorous fair use analysis, by completing each portion of the checklist below.
  • Not all of the statements under each factor will be present in any given situation. Check only those that apply to your use.
  • Where there are counter (opposing) statements, usually only one or the other applies.
  • No single item or factor is determinative of fair use, but some factors carry more weight than others, as indicated below.
  • The final determination is based on a weighing or balancing of the four factors. You do not need to have all factors or all details pointing in favor of or against fair use. (It’s not “all or nothing”.)
  • The use of this checklist is a good way to demonstrate your good faith attempt to follow the doctrine of fair use. Complete and retain a copy of this checklist for each fair use of a copyrighted work, should any dispute arise.
  • All shared materials should include a notice attributing the original source of the work.
  • Copies must be made from legally owned copies (personal or Kirkwood-owned).
  • Contact Kirkwood Library Services for help in making a fair use determination.

Factor 1: Purpose and Character of the Use

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The use is for the purpose of teaching in a non-profit educational institution (including multiple copies for classroom use).

☐ The use is for a commercial purpose

☐ The use is for criticism, comment, news reporting, or parody; or the use is transformative.

☐ Mirror image copying without the addition of criticism, comment, parody, or transformation of presentation or use.

☐ The use is necessary to achieve an intended educational purpose.

☐ The use is not necessary to achieve an intended educational purpose.

☐ Distribution is limited by password to students within a class for the term of the course; students acknowledge copyrighted nature of the materials.

☐ Unlimited or uncontrolled distribution

 

Factor 2: Nature of the Work

Give this factor less weight when the work is published, non-consumable, and non-fictional

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The work is non-fictional (factual) in nature.

☐ The work is fictional or highly creative

☐ The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work.

☐ The work is non-fictional in nature and author opinion, subjective description and evaluative expression dominate the work.

☐ The work is “non-consumable”

☐ The work is “consumable”, e.g. a workbook or test

☐ The original work has been published

☐ The work has never been published.

 

Factor 3: Amount and Substantiality of Portion Used

There is no set rule regarding amount used (e.g. rules such as 10% or 1 chapter have been rejected by the courts). You should avoid using a portion that is the “heart” of the work.

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ A decidedly small amount such as one chapter or less of the work is used.

☐ Multiple chapters of the work are used.

☐ Amount used is narrowly tailored to accomplish educational objective in course curriculum.

☐ Amount used is more than is necessary to accomplish educational objective in course curriculum.

☐ A small number of chapters of the work are used, and you have concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.

☐ Multiple chapters of the work are used, and you have not concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.

 

Factor 4: Effect on the Market for Original

Note: you must own a lawfully acquired or purchased copy of the original work that is used: this may be a personal copy or a copy owned by the institution (e.g. a library copy) – this may NOT be a copy obtained through Interlibrary Loan or other rented or borrowed source.

This factor carries the most weight, but is not so weighty that it determines fair use analysis. Favorable use of the first 3 factors may outweigh unfavorable results here.

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is NOT available.

☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonable priced digital license IS available.

☐ The work as a whole is not available for purchase, and a digital license is NOT available.

☐ The work as a whole is not available for purchase, and a digital license IS available.

 

Based on the University System of Georgia “Fair Use Checklist”. Used with permission.

Fair Use FAQ

Q: What about images, video clips, or other multimedia? Don't special rules apply?

A: The Fair Use doctrine makes no distinctions between different media or formats. Therefore the four fair use factors can still be applied to use of multimedia. However, some common uses listed below are typically considered fair use:

  1. Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.
  2. Students may perform and display their own multimedia projects for educational uses in the course for which they were created and use in their own portfolios as examples for later personal uses (e.g. job and graduate school interviews).
  3. Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions
  4. Educators may perform and display their own multimedia projects in face-to-face instruction or posted online in a secure location, such as Talon.

Q: The rules keep repeating to use a "lawfully acquired copy". What exactly is a "lawfully acquired copy"? 

A: In the case of educational use, it means copying the portion of the work you use from a personal copy or a college-owned copy (often a Library copy). Specifically, copying a portion from a rented or interlibrary loaned copy is *NOT* using a lawfully acquired copy, because it was only borrowed, not owned by the instructor or the institution.