Fair use offers an extraordinarily important opportunity for faculty to make reasonable and limited uses of copyrighted materials. Clipping, cutting, pasting, uploading, posting, and many other activities that are common at the university may be copyright infringements or may be within fair use. When do you need to think about fair use? Some example situations:
• Uploading materials to Blackboard or e-reserves.
• Clipping and copying materials into innovative teaching tools.
• Posting materials for distance learning.
• Developing databases of copyrighted works for research.
• Sharing articles and other materials with colleagues.
• Developing digital libraries.
• Placing copies on library reserves.
A fair use analysis is necessary to determine if your use is a fair one. A full discussion of the four factors under fair use and the use of the Fair Use Checklist is found under the Copyright Basics Tab of the Columbia University Libraries Copyright Advisory Office. Washington State University offers a fantastic discussion about the Fair Use Doctrine and Classroom Guidelines.
Using a course website or a university-supported Course Management System (CMS), such as Blackboard, to make instructional materials available to students can raise many copyright issues. These systems can be used to provide a wide range of materials, from articles and book chapters to sound recordings and visual images. However, such materials may be posted and shared only in a manner consistent with copyright law, which gives legal protection to nearly all text, images, audiovisual recordings, and other materials, whether available on the Internet or in any other medium.
Instructional materials may be posted to a CMS or a course website under any of the following circumstances, as detailed more fully below.
Showing or “performing” a motion picture at the university can be important for teaching and other university activities, but the performance must be made in compliance with copyright law. One of the rights of the copyright owner in the film is the right to make a “public performance” of it. Therefore, the performance of a copyrighted film must be made only with permission from the copyright owner or consistent with one of the exceptions or limitations in the copyright law.
As outlined below, the law does provide many opportunities for showing films at the university, but one usually must begin with the following assumptions:
Nevertheless, copyright law includes several possibilities for properly showing copyrighted audiovisual works. [Note: This document is only about the “performance” of the work. Making a copy of all or part of the work must be addressed separately.]
Allowed: Performing a work privately, and not publicly
A performance may not be “public” if the place is closed to the public, and the audience is not a “substantial” number of persons. Therefore:
Allowed: Performing a work in the course of teaching activities of a nonprofit educational institution
Copyright law includes a code section specifically permitting performances of works by nonprofit educational institutions. A performance may fit within the exception if:
These rules are specified in Section 110(1) of the U.S. Copyright Act, but a separate statute provides for performing a work through any “transmission” to students, such as through distance education or from a university server. That statute, known as the “TEACH Act” and codified at Section 110(2) of the U.S. Copyright Act, may be used only by complying with numerous conditions and requirements. Consult the Copyright Advisory Office for additional information.
Allowed: Performing a work with permission from the copyright owner
The creator of the work is typically the copyright owner or other rightsholder. In the case of motion pictures, movie studios usually hold rights in the works they create or distribute.
Allowed: Performing a work that is in the public domain
Copyright protection does not last forever, and when the copyright has expired, the work may be used without copyright restriction. For example, any work published in the U.S. before 1923 is in the public domain and may be used freely.
Allowed: Performing a work created by the U.S. government
Works created by the federal government are not protected by copyright and are in the public domain. However, works commissioned by the federal government may have copyright protection. Also, works produced by state, local, or foreign governments may have copyright protection. Federal government works in the public domain could include many military films and NASA space exploration footage.
Allowed: Performing a work within the limits of fair use
The law of fair use provides an exception to the exclusive rights of the copyright owner. For more information concerning the law of fair use, please see Fair Use under the Copyright Basics Tab. In most situations, fair use requires careful application and judgment calls; consequently, the other opportunities outlined above are usually preferable to undertaking an analysis of fair use.
Allowed: Performing a work that was lawfully made and obtained
An item that was obtained legally includes: a personal copy from home, a copy borrowed from another library (ILL) or friend or neighbor, an item rented from Redbox or Netflix, a copy purchased for the library or university. What is NOT allowed is a bootlegged or illegally copied item. There are limitations, such as when an item was purchased with specific limitations against public viewing.
Attribution and Thanks
Showing Film and Media in the Course of Teaching was written by Dr. Kenneth D. Crews and has been updated where required. The content of this unit is licensed on the basis of a CC By Creative Commons License. Attribution should be given to Dr. Crews if reproducing any information from this unit. Dr. Crews thanks Michelle Choe, Kreg Katoski, and David Wong for their assistance drafting this document.
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