Open Educational Resources: Copyright Basics

Copyright Basics - Fair Use and TEACH Act exceptions

Fair Use

For reference, see § 107. Limitations on exclusive rights: Fair use https://copyright.gov/title17/92chap1.html

The provisions of Fair Use are contained within section 107 of the US Copyright Law. When certain conditions are met, Fair Use allows the use of copyrighted material to be reproduced by parties other than the copyright holder. Please consult Section 107, Title 17 of U.S. Code for the complete details of the Fair Use exemption, but in short, it allows for the reproduction of copyrighted materials to be used in criticism, teaching (including multiple copies), news reporting, scholarship and research.

Section 107 is very brief and does not outline a set of cut-and-dry rules. Instead it offers 4 guiding principles that should be considered when determining whether an item falls under the provisions of Fair Use:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• 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 code itself acknowledges that the determination of Fair Use can be challenging. It is important to note that there are no specific regulations that indicate the percentage of the original work that can be used for an item to fall within Fair Use. Instead, the previously stated guidelines must be examined in their entirety and the conclusion of Fair Use is determined based on those.

To assist you in making a determination of Fair Use, please consult this checklist from Columbia University.

https://copyright.columbia.edu/content/dam/copyright/Precedent%20Docs/fairusechecklist.pdf

Complete the checklist and print a copy for your records. In the event a Fair Use decision is challenged, this record of your rationale will serve as documentation of your efforts to adhere to the Federal Copyright Code. More information on Fair Use can be found on the United States Copyright Fair Use page.

 

The Technology, Education, and Copyright Harmonization Act of 2002

The TEACH Act is a measure in which the United States Congress acknowledges the significance of distance education in the educational system of the United States. It was enacted in 2002 to address some of the restrictions that had hindered efforts to implement highly- effective distance education.
At the basic level, the TEACH Act enables educational resources that are commonly used in the physical classroom, to be employed in a distance education setting. Works that were previously prohibited from inclusion in distance courses are now allowed under the TEACH Act. These works include items such as performances of dramatic and non-dramatic works.

There are several provisions that must be met to allow these materials to adhere to the regulations of the TEACH Act.

• The Educational Institution must provide a statement on copyright policy, detailing the basic tenets of copyright policy and the TEACH Act.

• Notice to students: TEACH requires that students be alerted to the fact that content contained within the online course may be copyrighted, and as such is subject to copyright laws. This notice can be delivered in a variety of ways, but in the context of online courses it should be included as a prominent notification on the course page.

• Course content used under the premise of the TEACH Act must be password protected, and limited to students enrolled in the course. Additionally, the material may only remain available for a finite period of time that is consistent with the cycle of the course.

• Reasonable measures must be taken to insure that course materials used under the TEACH Act cannot be easily downloaded and disseminated outside of the distance education setting. 
• Technological controls that are contained within any materials that are used under the provisions of TEACH must not be altered. Some video and audio materials come with technological controls that prevent duplication, storage and dissemination. These technological measures must not be altered in any way.

Works explicitly excluded from protection under the TEACH Act: While the TEACH Act greatly expands the use of materials that can be used in distance education, there are some works that are explicitly prohibited.

• Works that are commercial in nature and have been created with the express purpose of providing programs intended to be purchased. The code of the TEACH Act expressly prohibits materials that are “marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks.”
• Any copy of a work that has been unlawfully duplicated, or is suspected of being so is prohibited.

It is important to note that TEACH and Fair Use operate independently of each other. You may encounter situations in which TEACH does not apply to a specific resource, but it still may be used within the provisions of Fair Use.