Fair Use and the Classroom
While fair use exceptions to the copyright law exist for purposes of "transformative use" (e.g. commentary and criticism or parody), this page is primarily concerned with fair use in a classroom setting. Use of copyrighted material in the classroom generally falls under two different areas: displaying material or making copies of that material.
Displaying copyrighted material in the classroom
This would include showing movies, playing audio recordings, and displaying visual or textual materials (in slides, for example) to an entire class in a face-to-face setting.
In general, this does not pose a problem under copyright law as long as:
1, The materials were legally obtained (no bootleg copies, etc.)
2. The material is being displayed by a teacher or student:
- In a physical classroom
- For an educational purpose (not for entertainment purposes)
- At a nonprofit educational or governmental institution
Material used in this way is generally exempt from public performance restrictions, etc., and permission to display the materials is generally not required.
Distributing and using copies of copyrighted material
The problems begin when you want to make and/or distribute copies of copyrighted material. Unfortunately, displaying material (as in Section 1) for an online class by definition involves making copies of that material.
There are essentially two ways you can legally distribute and use copies of copyrighted material in a face-to-face classroom setting:
1. You can get the copyright owner(s); permission (i.e. obtain a license). On our campus, the UNCG Bookstore will perform this service free of charge for faculty.
2. You can argue that the copying qualifies under the fair use exception to the copyright law. That exception allows copying for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," IF (and this is a very big IF) such use can be considered "fair" when analyzed using the following four factors:
- Tthe 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
- The effect of the use upon the potential market for or value of the copyrighted work
Of these four factors, (3) and (4) seem to get the most emphasis by the courts, especially the market impact factor. Small amounts of spontaneous copying for classroom use (not including whole articles or book chapters) are probably OK, although coursepacks containing whole book chapters and significant portions of articles have been held to violate the copyright law.
Again, it is important to remember that posting materials on the internet is a form of copying and makes them available to a vastly larger audience, which will increase the adverse market impact exponentially, i.e., don't do it without the owner's permission. If you need to post materials as part of an online class, there may be justification under the TEACH Act, which permits some limited use analogous to what would take place in a physical classroom.
As you can see, determining in advance what will qualify as a fair use is, at best, an exercise in uncertainty. Because each case is so fact specific, case precedent has little predictive value. The analysis of the four factors tends to be very subjective. Thus, in the event of a legal challenge, it will come down to what a particular judge thinks. This, unfortunately, is why the answer to so many copyright and fair use questions is "it depends."
Fair use status and policies
The UNCG Office of General Council offers a checklist that should be completed to help determine whether the doctrine of fair use may be applicable.
The UNC System also has a policy statement regarding Guidelines on Photocopying Copyrighted Materials.
-- Adapted from UNCG Office of the General Counsel Website and other sources