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Course Reserves: Fair Use

Course Reserves

Fair Use Analysis for Faculty

The reproduction and distribution or sale of copyrighted materials for classroom use is unlawful unless (a) permission is obtained from the holder of the copyright or (b) use of the material is a “Fair Use” within the meaning of the copyright act. The unlawful use of copyrighted material in teaching or other activities at Lewis & Clark is prohibited.

Section 107 of the Copyright Act lists four factors to help determine the types of content usage that may be considered Fair Use. If the use is considered a Fair Use under the law, then copyrighted material can be used without obtaining permission. No one factor alone dictates whether a particular use is indeed Fair Use. Consideration of all four factors is needed to help determine whether or not copyright permission is required.

Before applying these factors to your situation, identify if the use is for criticism, comment, news reporting, education, scholarship or research. If the answer is no, obtain copyright permission to use the content. If the answer is yes, examine the four factors listed below.

  1. The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.

    In evaluating the purpose and character of the use, courts favor non-profit educational uses over commercial ones. However, educational use does not always qualify as Fair Use, and it is important to consider each of the factors below to determine whether Fair Use applies.

  2. The nature of the copyrighted work.

    This factor focuses on the work itself. The legislative history states that there is a definite difference between reproducing a short news note and reproducing a full musical score, because of the nature of the work. Moreover, some works, such as standardized tests and workbooks, will never qualify for Fair Use because by their nature they are meant to be consumed. Uses of factual works are more likely than creative works to fall within Fair Use.

  3. The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.

    This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a Fair Use. Amount and substantiality is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the "heart of the work."

  4. The effect of the use on the potential market for or value of the copyright-protected work.

    Courts use this factor to determine whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes an existing or potential market for the copyright holder.

While these four factors are helpful guides, they do not clearly identify uses that are or are not Fair Use. Fair use is not a straightforward concept; therefore, any Fair Use analysis must be conducted on a case-by-case basis considering all four factors and the circumstances of the situation at hand.

Fair Use Checklist

The Fair Use Checklist will help you decide whether your intended educational use is a Fair Use.

The fourth factor asks you to consider the availability of licensing options for the material being used. While not an exhaustive list, the following resources can help you determine if a license is available:

If you have determined that your intended use is a Fair Use, please document the process you used by saving a print or electronic copy of the checklist.

If you have determined that your intended use is not a Fair Use you must get permission from the copyright holder to use any copyrighted work.  The College recommends XanEdu as the the vendor through which faculty purchase copyright clearance.

Questions about fair use?

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Jennifer Jacobs
Watzek Service Desk