Fair Use Guidelines for Digital Copies
Materials may be digitally distributed to students enrolled in a course when any one of the following is true:
- The instructor owns the copyright for the material (e.g.: sample exams).
- The copyright owner has granted permission to use the work or permission has been obtained through the Copyright Clearance Center.
- The material is in the public domain.
- Fair use requirements have been met.
Faculty are responsible for assuring that one of these requirements is met before distributing materials in the classroom (see WU Copyright Policy). If the university discovers that copyrighted material is being distributed over the network in a manner that does not fall within the principals of fair use, the instructor will be asked to certify that permission has been obtained from the copyright owner or the material will be removed from university servers.
Fair use is an exception to the copyright owner's exclusive right to reproduce a work. It allows limited copying without the permission of the copyright owner or the payment of royalties. Section 107 of the United States Copyright Act of 1976 defines the following four factors to guide determination of when the use of a copyrighted work is fair:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantially of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Note that fair use analysis requires viewing the details of a particular use of copyrighted material in light of all four factors. For example, educational use alone does not make a use fair.
Fair use guidelines
Distributing materials for educational purposes is one factor in favor of fair use. The remaining three factors need to be considered on a case-by-case basis. These guidelines may help in making a good faith analysis.
- Copies must be made from materials that have been legally obtained by the library, the faculty member, or some other unit of the university.
- Works that are factual or scholarly in nature are more amenable to fair use than expressive or creative works. In general, fair use does not apply to copyrighted material of a consumable nature, such as workbooks.
- When possible, copies should be limited to excerpts from longer works. Common examples include a chapter from a book, an article from a journal, or unrelated news articles. In all cases, the amount of material should be directly related to the educational objectives of the course. To the extent feasible, use only what is necessary to satisfy the classroom pedagogical needs.
- If the excerpts required in the classroom can be readily obtained from the publisher at a reasonable price this may weigh against fair use, especially if the excerpt or excerpts represent a significant portion of the original work (factor three).
- In most cases, the quantity of copyrighted material distributed to students should be a modest percentage of the total assigned material for the course.
- Students should be informed of their own ethical and legal responsibilities to use copyrighted material an appropriate way.
- These considerations apply to all media, including audio and video. For discussion specific to documentary film and fair use, see the American University Center for Social Media web site. For music recordings, the Music Library Association provides helpful policy statements and guidelines.
Use library materials
Whenever possible, the copy used should be one purchased or licensed by the library.
The Hatfield Library purchases materials for the nonprofit educational use of students and faculty with the clear understanding that there will be multiple users, and frequently pays an institutional subscription price that is many times the individual subscription price.
In the case of online resources, including audio and video, the library works to negotiate license agreements that do not diminish fair use or prohibit the electronic distribution of materials to Willamette students. Our license agreements often give faculty an explicit right to use materials in this way.
Appropriate access restrictions must be applied to copyrighted material used in the classroom. Typically, this will mean restricting access to students enrolled in the course. The best and safest way to do this is to use WISE.
When a faculty member determines that copyright permission is needed, he or she may obtain permission from the copyright holder or through payment of a fee to the Copyright Clearance Center (CCC). Obtaining permission through the CCC requires year of publication, number of pages, and number of students enrolled in the course. Contact the library for more information on obtaining permission for reserves or see the University's Procedures to Clear Copyright.
The distribution of copyrighted material though course management systems and by other digital means is an unsettled area of the law that may be addressed through future legislation or litigation.