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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

When determining fair use of copyrighted materials, all of the four factors must be considered:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes 
  2. The nature of the copyrighted work 
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Source:  U.S Copyright Office



Below is a checklist from  the Copyright Advisory Office of Columbia, Kenneth D.Crews, Director. (Need a printable PDF version?  Fair Use Checklist).

Purpose    
Favoring Fair Use Opposing Fair Use
Teaching (including multiple copies for classroom use)
•   Research
 Scholarship
 Nonprofit educational institution
 Criticism
 Comment
 News reporting
 Transformative or productive use (changes the work for new utility)
 Restricted access (to students or other appropriate group)
 Parody
 Commercial activity
 Profiting from the use
 Entertainment
 Bad-faith behavior
 Denying credit to original author




 

Nature
 
Favoring Fair Use Opposing Fair Use
•  Published work
 Factual or nonfiction based
 Important to favored educational objectives
•  Unpublished work
 Highly creative work (art, music, novels, films, plays)
 Fiction

Amount
 
Favoring Fair Use Opposing Fair Use

•  Small quantity
• 
Portion used is not central or significant
• 
Amount is appropriate for favored educational purpose
 

Large portion or whole work used
•  Portion used is central to or “heart of the to entire work work”
 

Effect   
Favoring Fair Use Opposing Fair Use

•  User owns lawfully purchased or acquired copy of original work
•  One or few copies made
•  No significant effect on the market or potential market for copyrighted work
•  No similar product marketed by the copyright holder
•  Lack of licensing mechanism

 

 •  Could replace sale of copyrighted work
• 
Significantly impairs market or potential market for copyrighted work or derivative

•  Reasonably available licensing mechanism for use of the copyrighted work
•  Affordable permission available for using work
•  Numerous copies made
•  You made it accessible on the Web or in other public forum
•  Repeated or long-term use

Fair Use of Books and Periodicals

Permissible

1. Single Copying for Teachers

  • A chapter in a book 
  • An article from a periodical or newspaper 
  • A short story, short essay or short poem, whether or not from a collective work 
  • A chart, graph, diagram drawing, cartoon or picture from a book, periodical, or newspaper

2. Multiple Copies for Classroom Use

  • The copying meets the tests of brevity and spontaneity and meets the cumulative effect test and each copy includes a notice of copyright
  • Brevity
    1) Poetry
    : a) A complete poem if less than 250 words and if printed on not more than two pages; b) From a longer poem, an excerpt of not more than 250 words (may be extended to finish a line)
    2) Prose:
    a) A complete article, story or essay of less than 2500 words; b) An excerpt of not more than 1000 words or 10% of the work, whichever is less, but a minimum of 500 words (may be extended to finish a paragraph)
    3) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue

    4) Special Works: An excerpt of not more than two pages and not more than 10% of the words, when combining language with illustrations, in which the entire work is less than 2500 word
  • Spontaneity
    1) Copying is at the instance and inspiration of the individual teacher (not the supervisor)
    2) The inspiration and decision to use the work and moment of its use are too close in time for a reply to a request for permission

  • Cumulative Effect
    1) Copying is for only one course in the school in which the copies are made
    2) Not more than one short poem, article, story, essay or two excerpts from the same author
    3) Not more than three from the same collective work or periodical volume during one class term
    4) Not more than nine instances of such multiple copying for one course during one class term

Not Permissible

1. To create, replace or substitute for anthologies, compilations or collective works 

2. Copying of or from works intended to be “consumable,” such as work books, exercises, standardized tests and test booklets and answer sheets 

3. Used as a substitute for purchase of books, publishers’ reprints or periodicals 

4. Directed by a higher authority

5. Same item repeated by the same teacher from term to term 

6. Charging students beyond the actual cost of photocopying

7. More than one copy per student per course


Source: Enghagen, Linda K. Fair Use Guidelines for Educators: Books and Periodicals, Music, Off-Air Recordings of Broadcasts, Multimedia, Distance Learning, Digital Images, Software. Needham, MA: Distributed by Sloan-C, 2005. Print.

Fair Use of Multimedia

Permissible

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 (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 the following instructional situations: 1) face-to-face instruction, 2) assigned for directed self-study, and 3) for remote instruction with limited access


Not Permissible

Students may not make copies of the instructor’s copy


Limitations: Time, Portion, Copying and Distribution 

Permissible

1. Time: Use for 2 years after the first instructional use

2. Portions:1) Motion Media: up to 10% or 3 minutes, whichever is less; 2) Text Material:up to 10% or 1000 words, whichever is less; 3) Poem:an entire poem of less than 250 words; 4) Music, Lyrics, and Music Video: up to 10%; 5) Illustrations and Photographs: use in its entirety; 6) Numerical Data Sets: up to 10% or 2500 fields or cell entries, whichever is less

3. Copying and Distribution: 2 use copies, with 1 of them on reserve; 1 copy for preservation for possible replacement


Not Permissible

1. Time: Use beyond 2 years, even for educational purposes, without permission

2. Portions:1) Text Material: More than 3 poems by 1 poet or 5 poems by different poets from an anthology; More than 3 excerpts by a poet or more than 5 excerpts by different poets from an anthology; 2) Music, Lyrics, and Music Video: More than 30 seconds; any alterations that change the basic melody or fundamental character; 3) Illustrations and Photographs: More than 5 images by 1 artist or photographer; more than 10% or 15 images, whichever is less, from a collective work.


Source: Enghagen, Linda K. Fair Use Guidelines for Educators: Books and Periodicals, Music, Off-Air Recordings of Broadcasts, Multimedia, Distance Learning, Digital Images, Software. Needham, MA: Distributed by Sloan-C, 2005. Print.

Fair Use of Music

Permissible

1. Emergency copying to replace purchased copies which are not available for an imminent performance; purchased replacement copies shall be substituted in due course.

2. Single or multiple copies of excerpts of works for academic purposes other than performance may be made.

3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distored or the lyrics, if any, altered or lyrics added if none exist.

4. A single copy of recordings of performances by students made for evaluation or rehearsal purposes may be retained by the institution or teacher.

5. A single copy of a sound recording (tape, disc, cassette) owned by the educational institution or a teacher for the purpose of constructing aural exercises or examinations may be retained by the educational institution or teacher (This pertains to the music copyright and not to the sound recording copyright.)

Not Permissible

1. An entire section, movement or aria

2. More than 10% of the whole work

3. More than one copy per students

4. To create, replace, or substitute for anthologies, compilations or collective works

5. Works intended to be “consumable” (workbooks, exercises and standardized tests and answer sheets)

6. For the purpose of performance, except in emergency

7. For the purpose of substituting for the purchase of music

8. Not including the copyright notice

9. Editing or simplifying which distorts the fundamental character of the work or the lyrics Adding lyrics if none exist


Source: Enghagen, Linda K. Fair Use Guidelines for Educators: Books and Periodicals, Music, Off-Air Recordings of Broadcasts, Multimedia, Distance Learning, Digital Images, Software. Needham, MA: Distributed by Sloan-C, 2005. Print.