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Copyright for Instructors: Fair Use

This guide provides information about copyright for University instructors.

Please note!

The information presented in this guide is for informational purposes only and should NOT be construed as legal advice.  If you are looking for legal advice, please contact the University of Maine Office of General Counsel.

What is fair use?

Fair use is an exception created to the copyright laws that sometimes allows people to legally use copyrighted material created by others without obtaining permission "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 USC §107).  In order to fall into the category of fair use, a use of copyrighted material must be analyzed in relation to the four factors below (note that how important any of the factors are considered to be is decided on a case by case basis, and that there are no absolute or easy rules about these factors):

  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 (17 USC §107).

Remember, copyright doesn't apply to facts, ideas, data, representations of data (graphs, charts, tables), processes, systems, methods, procedures, titles, works prepared by the United States Government, constitutions and laws of state governments, or materials in the public domain, so generally you don't need permission to use those materials.  (For more about the public domain, visit our page about legal rights and licenses.)

Is fair use different in in-person and online classes? What about course management systems?

The short answer is yes.  The long answer is that different aspects of copyright law regulate the fair use of copyrighted materials in in-person and online classes.

In an in-person class, using copyrighted material without permission may be considered to fall into the fair use exception if the material is used:

  • for instructional purposes
  • in face to face teaching
  • at a nonprofit educational institution.

If all three categories apply to your use, using copyrighted materials in a class meeting without permission may be considered to fall under fair use--though every case is different.

When considering posting material to an online course management system, you may want to consider the four criteria listed in the "What is fair use?" box above, as well as the fact that links to licensed material (e.g., material purchased by Fogler Library) may be more likely to fall into the fair use exception than downloading and posting .pdf files.  There are no set rules about how much or what percentage of a work may be posted without permission without infringement, but it is generally understood that posting an entire book is infringement.  It may be useful to consider whether, if you had written a work, you would consider it to be fair if someone else posted a similar portion of it to their course website without compensating you or asking for permission.

In an online class, using copyrighted material without permission is governed by the Technology, Education, and Copyright Harmonization (TEACH) Act (which modified 17 USC §110, §112, and §802).  If you:

  • are an educator at an accredited educational institution,
  • will supervise your students' use of copyrighted materials,
  • are using the material as an integral part of a class session,
  • are using the material as an integral part of your curriculum,
  • are using the material that is directly related to and of material assistance to your teaching content, and
  • plan to use copyrighted works in the following ways:
    • performances of nondramatic literary works (i.e., a recording of a novel being read aloud),
    • performances of nondramatic musical works (i.e., a recording of a symphony),
    • performances of reasonable amounts of any work (i.e., an excerpt from a movie), or
    • display of any work in an amount comparable to what would be used in a live classroom,

then your use may be found to comply with the TEACH Act, though again, every case is different.  Keep in mind that online use of material may be more likely to be perceived as fair use if access to the material is limited to the students in the class.

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