1. Copyright and Fair Use for the
Classroom
Jane Treadwell, University Librarian and Dean of
Library Instructional Services
H. Stephen McMinn, Director of Collections and
Scholarly Communications

2. Overview/Outline
 Introduction – What is Copyright?
 Fair Use
 Recent Decisions
 Georgia State University Decision
--Implications

3. Copyright -- U.S. Constitution
“Empowers the United States Congress to
promote the Progress of Science and useful
Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their
respective Writings and Discoveries”
Copyright Clause of the U. S. Constitution
(Article I, Section 8, Clause 8)

4. Exceptions to Copyright Law
 Numerous - depending on type of material,
users, and author/producers
 3 Major for Educational Purposes
1. Face-to-face Instruction
2. Virtual Instruction
3. Fair Use

5. Face-to-face Instruction*
Traditional classroom -- In this setting all
performances and displays of a work (Text,
Music, Images, and Video) are allowed.
Requirements:
1. All materials must be legally acquired.
2. Teaching activities must take place in a classroom or a similar place
devoted to instruction.
(*Section 110 of the U.S. Copyright Code)

6. Virtual Instruction*
Online, Hybrid, or supplemental use of course
management systems. Virtual instruction
includes digitally transmitting class materials
to students. The basic premise is to allow
comparable instruction in the online
environment as to what takes place in a
traditional classroom.
(*Section 110(2) -- TEACH Act)

7. TEACH Act Requirements- 3 Types
 Instructors
– Regular part of the curriculum, chosen by the
instructor, must be an integral part of the class
session, directly related to the teaching
content, and comparable to traditional class.
 Technology
– Only enrolled students, only for the duration of
the class, and students can’t copy/share.

8. TEACH Act Requirements- 3 Types
 Course Materials
– Listing of acceptable materials – most materials
– Non acceptable materials – textbooks, course
packs, illegal copies
– Must contain notice of copyright
– May convert analog version to digital (only
amount needed)

9. Fair Use
Fair use allows for exceptions to the copyright
law for use not specifically exempted as long
as that use can be considered fair.
A key consideration is the extent to which the
use is interpreted as transformative, as
opposed to merely derivative.

10. Fair Use
The copyright law also states the various
purposes for which the reproduction of a
particular work may be considered fair, some
of these include criticism, comment, news
reporting, teaching, scholarship, and
research.

11. Fair Use
The “fairness” is based on four factors each of
which is weighed equally.
1. Nature and Purpose of the Use
2. Nature of the Copyrighted Work
3. Amount or Substantiality of Portion Used
4. Effect on the Market Place

12. 2 Examples – Example 1
A professor wishes to place on reserve 3
chapters (an introductory chapter and
chapters 14 & 15 of the 15 chapter work).
The work is a non fiction treatise on the
housing crisis by a noted economist, that
analyzes several factors with emphasis on the
changing regulation in the banking industry
as the root cause.

13. 2 Examples – Example 2
To supplement information not discussed in-
depth in the course textbook, an
environmental science professor wants to
place on reserve chapter 6 of a 12 chapter
book on hydrocarbons that discusses the
health, safety, and environmental impact of a
chemical normally used in the clean up of oil
spills.

14. 1st Factor
Purpose and Character of the Use
 Purpose – Nonprofit, Educational, Personal,
Commercial, For Profit
Character – Teaching, Research, Scholarship,
Criticism, Commentary, News Reporting,
Entertainment
Fair Use – Educational Nonprofit using works
for teaching, research, and scholarship

15. 1st Factor - Purpose and Character
of the Use
 Example 1 – Nonprofit Educational
Institution using the work for
Teaching/Scholarship
– Favors Fair Use
 Example 2 -- Nonprofit Educational
Institution using the work for
Teaching/Scholarship
– Favors Fair Use

16. 2nd Factor
Nature of the Copyrighted Work
Factual vs. Creative
scholarly, scientific, technical vs. artistic,
fiction, poetry
Some items not covered, i.e. consumables –
workbooks, standardized tests, etc.
Fair Use -- favors use of factual works

17. 2nd Factor - Nature of the
Copyrighted Work
 Example 1 – This is a nonfiction popular
work that tends towards creative/opinion
with a broader marketplace than academia
– Tossup
 Example 2 – The work is a factual,
scientific/technical work
– Favors Fair Use

18. 3rd Factor
Amount or Substantiality of Portion Used
2 Criteria
 How much is used?
 Core or “Heart of the Work”?
 Depends on type of material
 No magic number or percentage*

19. 3rd Factor - Amount or
Substantiality of Portion Used
 Example 1 – 3 chapters of 15 chapter work
is 20% and ending chapters with conclusion
could be considered “Heart of the work”
– Favors needing permission
 Example 2 – 1 chapter of 12 chapter work
with chapter not core to the overall work.
– Favors Fair Use

20. 4th Factor
Impact on the Market Place
 Effect of the use upon the potential market
for, or value of, the copyrighted work
 Use vs. Purchase?
 Criteria - Permissions readily available or
not, at reasonable cost, own a copy of the
work, access restrictions in place…

21. 4th Factor - Impact on the Market
Place
 Example 1 – Library owns copy but e-book
available and permission can be obtained
from Copyright Clearance Center (CCC).
– Favors needing permission
 Example 2 – Library owns copy of book,
e-book not available and not with CCC.
– Favors Fair Use

22. 4 Factors Analysis
Example 1 Example 2
1. Fair Use 1. Fair Use
2. Tossup 2. Fair Use
3. Permission 3. Fair Use
4. Permission 4. Fair Use
Need to obtain Can use without
permission! permission under Fair Use

23. Fair Use
 Balance between Public and Copyright
holder
 All factors should be weighted the same
 Not dependent on technology or format
 Fair use allows for use without permission
 Not all educational use is Fair Use!

24. Copyright -- Confusion
 Copyright vs. Public Domain
– Usually by Date
– http://copyright.cornell.edu/resources/publicdomain.cfm
 Copyright vs. Open Access
 Copyright and Creative Commons
Both Copyright – Permissions issue

25. Recent Copyright Decisions
 UCLA
http://chronicle.com/blogs/wiredcampus/judge-dismisses-lawsuit-against-ucla-over-use-of-
streaming-video/33513
 Georgia State University
http://chronicle.com/article/Long-Awaited-Ruling-in/131859/
 HathiTrust
http://chronicle.com/article/Judges-Decision-Could-Clear/135224
 Wiley vs. Kirtsaeng (pending)
http://chronicle.com/article/Supreme-Court-Appears-Divided/135478

26. Georgia State Univ. Decision
In Brief –
Three scholarly publishers supported by the
Association of American Publishers and the
Copyright Clearance Center sued GSU in 2008
over electronic reserves policy/practices that
they felt were in violation of Fair Use or were
otherwise infringing on copyright.

27. GSU Decision
 Case decided in 2012
 5 Total Violations out of 99 or 75
– Started with 99 works but couldn’t prove they
held copyright for 24 of the works
– Analyzed 75 total works for the 4 factors
 5 Violations – 4 exceeded amount and
permissions were available and 1 “heart of
the work.”

28. GSU Implications
 Really Unknown Still!
– Appeal
– Georgia only
– Reserves and Non-fiction works
 *Provided Guidelines on amount – 10% of
works under 10 chapters or 1 chapter for
items with 10 or more chapters

29. GSU Implications
 Eliminated old one semester rule!
 Leaned heavily on availability of easily and
reasonably obtaining permission
 Economic Good News
– “Prevailing Party” Ruling
– Monetary damages would have been negligible
or unavailable due to state sovereign immunity.

30. Takeaways
 Library is here to help
– Both E-Reserves and Copyright Questions
 Library can’t always perform miracles
– Permissions take time and/or cost money
– Permission costs passed back to Departments
 Things are getting better

31. Overall Picture– Things are
Getting Better
 More Guidelines
 More Licensed Resources
 Paid Permissions more streamlined
 Greater Awareness of Copyright &Fair Use
 Limited Liability
 UIS Policies/Activities/Services

32. Questions?
Thank You for Attending!
Stephen McMinn
stephen.mcminn@uis.edu
Jane Treadwell