Copyright and Fair Use Guidelines

“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”

- U.S. Constitution, Article 1, Section 8

Copyright, established by the Constitution, is a form of intellectual property law that protects the authors of original artistic and intellectual works. Copyright protection begins from the moment a creative work is “fixed in a tangible (including digital) medium.” A work does not have to be registered with the U.S. Copyright office to be protected and copyright law covers both published and unpublished works. Copyright, however, does have a limited life. Once a copyright expires, the work passes into the public domain, and can be used freely without any copyright infringement. Under today’s law, copyright lasts through an author’s life, plus seventy more years. For the most part, works published before 1923 are in the public domain.

The American Library Association's Digital Copyright Slider provides a quick assessment of whether a work is in the public domain. A detailed overview of copyright terms and public domain is offered by the Copyright Information Center at Cornell University.

Explore Stanford University Libraries' excellent overview of Public Domain here. 

One of the most important aspects of copyright law is that there are exceptions to the rights of copyright owners. The best known of these exceptions is the Fair Use Doctrine which was added to the Copyright Act of 1976. This doctrine recognizes that at certain times unauthorized infringements of copyright "promote the Progress of Science and the useful Arts." In other words, using copyrighted materials "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" would be “the fair use of a copyrighted work.” (U.S. Copyright Office, Reproduction of Copyrighted Works 4)

Deciding what constitutes "fair use" is not always straightforward, however. Rather than providing precise specifications, Congress created a "flexible" law that would be adaptable for many situations. In order to determine then whether the use of a work is "fair use," the Fair Use Doctrine states that the following four factors must be considered:

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.

For faculty it is generally most important to keep in mind the amount of copyrighted material being used and whether this use impacts market value. Photocopying a short excerpt from a book to enhance a classroom lesson, for example, would fall within the realm of fair use while copying most of a book (rather than having students buy that book) would not.

Because the Fair Use Doctrine is not specific, a Congressional Report in 1976 established some guidelines to help educators comply with fair use. According to this report, the following is always prohibited:

Classroom copying cannot be used to replace workbooks, texts, standardized tests, or other materials that were created for educational use (in other words, educators cannot usurp the profits of educational publishers through their copying). There can be no copying of works intended to be "consumed" in the course of study, such as workbooks, exercises, test booklets, answer sheets, and like consumable materials. Copying cannot be used to create, replace, or substitute anthologies, compilations, or collective works. Students cannot be charged more than the actual cost of the photocopying. Copying cannot be repeated with respect to the same item by the same educator from term to term.

For an in-depth account of the preceding description of the Fair Use Doctrine, please refer to Reproduction of Copyrighted Works by Educators and Librarians from the U.S. Copyright Office.

The Mount has developed a Fair Use Checklist to assist faculty in complying with fair use provisions. For practical "rules of thumb" on what constitutes fair use, please see the "Practical Tips for Ensuring Fair Use" section of this web site.

Video for A Fair(y) Use Tail

"Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License." Stanford Law School, Center for Internet and Society, http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale

The Mount has developed a Fair Use Checklist to assist faculty in complying with fair use provision

As the availability of web-based resources has grown, and we can easily scan, upload, store and copy such resources--not only text-based materials, but imagery and sound recordings as well---instances of possible copyright infringement become more likely and more numerous. The growth of distance education, in particular, "has accelerated the use of copyrighted materials on the Internet and in other networked systems" (Crews 67). To address the complicated copyright issues that are involved in distance education, Congress passed the TEACH Act (Technology, Education, Copyright Harmonization Act) in 2002. The TEACH Act revises Section 110 (2) of the U.S. Copyright Act by allowing instructors to use digitized copyrighted materials in distance education within certain limitations.

While the Fair Use Doctrine emphasizes the responsibility of the individual instructor, the TEACH Act recognizes that copyright compliance must also be the responsibility of the institution. The law requires that institutions use technology to prevent abuse of copyrighted materials by "limiting access to enrolled students," and "ensuring there are technological controls on retention and further dissemination."

In order to be sure, therefore, that you are adhering to Fair Use and the TEACH Act, your online learning courses or eClass pages should only be accessed via a password distributed only to students enrolled in these courses, and--once the course is finished--students should no longer have access to the copyrighted materials used in the course.

Kenneth D. Crews writes that the TEACH Act "offers benefits along with limits and responsibilities" (67). Unlike the flexible terms of Fair Use, the limitations in the TEACH Act are "highly detailed and are generally exacting in their definitions of allowed uses of copyrighted works" (Crews 68). For more information on the TEACH Act, see Distance Education and the TEACH Act from the American Library Association.

The Mount has developed a TEACH Act Checklist to help instructors comply with the more “exacting” requirements of the TEACH Act. The checklist should be completed and retained for each distance education course.

Please click here to download the MSMC Teach Act Checklist.

Use the Digital Copyright Slider to determine whether an item is protected by copyright. Other online copyright tools are available from the Copyright Advisory Network. Use the MSMC Fair Use Checklist to determine whether use of a copyrighted work falls within fair use provisions. Complete and retain the checklist as proof of a good faith effort to apply fair use. Use the MSMC TEACH Act Checklist to determine whether use of a copyrighted work in a distance learning course is permissible within the requirements of the TEACH Act. Complete and retain the checklist as proof of compliance. Be sure that eClass pages or any other class/faculty website where copyrighted work is posted is password-protected and accessible only by students enrolled in the course. Include the full citation for any material distributed in class or posted to eClass. When posting articles on eClass, link to articles in library databases whenever possible. Limit online access (whether on eClass, course website, or library e-reserves) to one article per journal issue, one chapter per book, or less than 10% of a total work. Obtain public performance rights for any film screening where the audience includes people who are not officially registered students viewing the film in a classroom setting. Contact your division chair for more information about obtaining performance rights. Certain films owned by the MSMC Library have been purchased with public performance rights. These may be shown to any audience in any setting as long as no admission fee is charged.

The sources used to develop this website provide a wealth of additional information about copyright and fair use.

American Library Association, Copyright

Columbia University Libraries / Information Services, Copyright Advisory Office

Copyright Advisory Network 
The Copyright Advisory Network website provides access to the "Digital Copyright Slider" and other online copyright tools.

Copyright Clearance Center, The Campus Guide to Copyright Compliance for Academic Institutions

Cornell University Copyright Information Center

Crews, Kenneth D. Copyright Law for Librarians and Educators: creative strategies and practical solutions.
Chicago: American Library Association, 2012. Available from Mount Saint Mary College Library: LIB KF2995 .C74 2012

Ken Crews is the Director of the Copyright Advisory Office at Columbia University Libraries and one of the foremost experts on copyright and fair use. He can be contacted via the Columbia University website listed above. 

United States Copyright Office

United States Copyright Office, Reproduction of Copyrighted Works by Educators and Librarians

University System of Georgia Copyright Policy

For more information about copyright and fair use view this tutorial.