Fair Use Judgement Calls in Classroom Teaching

What the Fair Use limitation on copyright actually says

There isn't a lot of text. This is it:

17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a 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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

A few types of teaching uses are clearly permitted by United States laws, including linking to existing public content, and some kinds of in-class use of images, video, or audio media as articulated in the Classroom Use Exemption and the TEACH Act (17 U.S.C. § 110). Beyond that, faculty will have to make some judgment calls about what they share with students. Many factors come into play, and instructors, even in similar situations, may make different choices about their uses.

Making copies for students

It's not all that common anymore for instructors to hand out paper copies of reading materials for students, although some still do. More often, instructors may make materials such as articles, book chapters, audio clips, and videos available in a course management system like Moodle or a password-protected course website. Linking to materials usually doesn't present any copyright issues, but uploading files is almost always a copyright issue in much the same way as making paper copies. Instructors can sometimes upload materials to a course website without seeking copyright permissions when this copying falls within the bounds of fair use, as provided by US copyright law.

Fair use allows some copying without permission in support of socially beneficial things like criticism and commentary, news reporting, scholarship, and education. In fact, the statutory definition of fair use highlights classroom copying, stating that it includes "multiple copies for classroom use." The same basic elements of fair use apply to all kinds of uses by teachers, artists, researchers, reporters, and so on. Everything starts with an analysis of the four factors of fair use noted above.

Highlights for instructional use

Less is more

Fair use is most likely to apply to the use of relatively small portions of works, and when the portion used is key to a specific pedagogical purpose. So while it may be acceptable to upload a film clip for students to watch in preparation for a class discussion of that clip, uploading longer portions of a film would be less likely to be fair use. Similarly, sharing a small portion of a book as a PDF might be acceptable, but it would rarely be fair use to upload an entire book.

Online isn't special

Putting materials for students online is not fundamentally different from making paper copies for them; online copies are no more or less likely to be fair use than offline ones. Sometimes, information about copying suggests you might be responsible for what people do with digital files you give them, but that's not how the law usually works.

Passwords aren't magic, but they're useful

Posting things to a password-protected course website or course management system such as Moodle is not really relevant to whether the copying is a fair use or not. However, it may be relevant if you are thinking about the "market harm" factor. When you limit access to enrolled students, you know exactly how many people would have access to your copies, and thus the extent of some types of potential market harm.

Sometimes you're supposed to pay!

Fair use does not cover all copying, and in particular it may not cover copying when a paid alternative exists. If you want students to have their own copies of a book, they may need to buy the book. If you want them to watch a movie, they may need to pay to view it via an online streaming service. Library staff can help you explore options to reduce costs such as linking to legitimate copies, placing course materials on reserve, purchasing institutional copies of ebooks or streaming video, but this isn't always an option.

At Macalester College, course instructors are trusted to make their own reasonable and informed choices about fair use which requires knowing something about how fair use works, and your Research & Instruction Librarians and Academic Information Associates can help with that.

If it does not seem like a fair use to copy something as a course reading, such as if you need students to read several chapters of a book or watch an entire movie outside of class sessions, you may need to seek permission. Library staff can help with obtaining appropriate permissions. Alternatively, you could request original copies of the book or movie to be placed on course reserve at the library for students to check out and use on their own. It's less convenient than an online copy, but it doesn't raise copyright problems.

Case law about fair use

Stanford Libraries' extensive resource on Copyright and Fair Use has a good summary of case law related to fair use. Looking at the examples can help you learn more about how the courts apply the four factors in a variety of cases.

Until quite recently, there wasn't much information about whether providing online copies for students fell within fair use. Many folks pointed to the 1990's "coursepack cases" (Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991); Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996)) as establishing the principle that all copies of course readings required permission and payment. However, those cases involved paper copies made by for-profit copy shops, and as it became more common for individual instructors to post readings online, some different interpretations arose. In April 2008, three academic publishers filed suit against four officers of Georgia State University for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” through the library’s e-reserve system. This case finally resolved in September 2020, landing on "mostly fair use" but not in all specific instances.