Copyright & Fair Use

Copyright is a complex topic. The Copyright Law of the United States at present is over 120 pages and the whole of Title 17 (USC) is about three times that size. There are risks of misunderstanding in trying to summarize something so complex. The highly selective summary below identifies select principles about copyright and fair use specifically in the context of higher education teaching and research. It should not be regarded as legal advice nor does it preclude thoughtful consideration about using copyrighted content under fair use or specific educational provisions.

• What is copyright?
  • Copyright law protects the rights of an author or creator and permits them to do a variety of things with content that they created. Copyright lasts a long time. On January, 1, 2019 content created in 1923 or earlier will enter public domain.
• What is fair use?
  • Fair use affords provisions under which copyrighted content may be used without infringing on the rights of the copyright holder. There are four criteria that really are not reducible and which must all be considered in an adequate fair use determination:
    • 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 substantiality of the portion used in relation to the copyrighted work as a whole; and
    • 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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 

  • Individuals are responsible for their use of copyrighted content. Ignorance of the law provides no excuse.
  • Fair use may apply to copyrighted content for educational purposes but fair use and educational purposes do not present a “blank check” to use copyrighted content. There are select but limited provisions granted with face-to-face instruction. Apart from those, fair use factors must be considered.
• Reproducing copyrighted content that circumvents the purchase of content created especially for instructional purposes generally would not qualify under fair use (for example lab manuals, textbooks, instructional video, and other “consumable” content). Personally owning something you copy is not a sufficient basis to invoke fair use.
• It is not true that everything on the web can be freely used for instructional purposes.There are many examples on the web of improperly appropriated content under copyright. There is also much material openly available.
• Using film for instruction presents special challenges. Face to face classroom instruction is the context affording the greatest latitude for using film. In general, select short excerpts for instructional purposes. “Performing” a film outside of face to face instruction more often constitutes “public performance” and requires a special license. Using media you own or borrow from the library does not provide a “public performance” rights. Netflix, Amazon, Hulu, and similar licenses are limited to personal use and don’t normally extend to instructional purposes.
• Copyright law (17 U.S. Code § 1201) prohibits the circumvention of digital rights management techniques. Digital Rights Management (DRM) uses technology to limit how digital content (and sometimes devices) can be accessed, copied, edited, or changed. The controls are normally embedded within the content or device. DRM controls can apply to DVDs, digital music and eBooks. In nearly all cases, copyright law prohibits breaking or bypassing the encryption technologies used for DRM. While there are some highly specific exemptions to section 1201, the fair use exemption is not, in general, applicable. The Library does provide many eBooks without DRM. You are encouraged to consult the University Librarian or the Director of Academic Technology about alternative DRM content or resources that may be available.
• If you have doubts about using copyrighted content, it’s better to find an alternative that can be used properly.
• Explore with Zondervan Library personnel options for acquiring content or licensing that can be used legitimately.
• You are encouraged to consult the University Librarian or the Director of Academic Technology if you have questions.