The scenarios to the right are intended to help faculty and students evaluate fair use. These scenarios are illustrative, not exhaustive.
The examples deal with situations involving:
SCENARIO 1: A professor copies one article from a copyrighted periodical for distribution to the class.
FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires permission from the copyright holder.
SCENARIO 2: A professor wants to scan an article from a copyrighted journal and add it to his web page.
FAIR USE? No, if his web page is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, such as on an e-learning site, or on electronic course reserves, then it is more likely to be fair use. Providing a link to the article from one of the library's databases or from an online open archive would constitute fair use.
SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.
FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to either a clearance service or copy services such as CopyWorks.
SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He scans the book and gives the members of the class copies on a CD.
FAIR USE? No. This is problematic for two reasons: 1) Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. 2) Digitizing an analog print-based textbook reproduces the work. Only the copyright holder has the exclusive right to reproduce the work. The professor should place the textbook on reserve or require the students to purchase the book.
SCENARIO 5: A teacher copies a Shakesperean play from a copyrighted anthology.
FAIR USE? Yes. Although the anthology contains a copyright notice, the notice only applies to the new material added to create the anthology. For example, the notes and introductions would be considered the portion of the anthology that is under copyright. The literary works themselves have passed into the public domain and can be used.
SCENARIO 6: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.
FAIR USE? Yes. This is an example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.
SCENARIO 7: Using the same facts as explained in SCENARIO 6, could the professor copy the book and place the copied book on reserve in the library? Could the professor scan the book into her computer and load the file onto the World Wide Web?
FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book. Even if the professor placed the work on a password-protected site such as eLearning, only the copyright holder has the exclusive right to digitize or reproduce the work. The professor would need to seek permission from the copyright holder.
SCENARIO 8: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.
FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.
SCENARIO 9: A teacher makes a copy of the videotape described in SCENARIO 8 for a colleague to show in her class at the same time.
FAIR USE? No. The teacher may lend her personal copy of the videotape to a colleague for this purpose.
SCENARIO 10: A campus group wishes to host a film festival. They check out several DVDs from Rod Library to show at their event and charge admission fees.
FAIR USE? This would depend upon the rights Rod Library purchased with the DVDs. If the DVDs have "For Home and Classroom use Only" listed in the "note field" of the record, then the DVDs can only be used for personal viewing or for face -to -face teaching. If the DVDs have "Public Perfomance Rights" listed in the "notes" field of the record, then the group can use the DVDs for this event. More information about Public Performance Rights can be found here.
SCENARIO 11: A faculty member records a segment of the evening news on his home VCR and the next day shows the recording to his class.
FAIR USE? Yes. It complies with the "Kastenmeier Guidelines" which dictate the appropriate length of time an off -air recording can be used during the school year for teaching purposes. If the faculty member wishes to show the same segment later in the semester or in subsequent semesters, permission must be granted from the copyright holder.
SCENARIO 12: A faculty member records an episode of ABC's "What Would You Do?" from Hulu to show in his Ethics course.
FAIR USE? If the episode is still retained on Hulu, then Hulu's terms of use grant a "non-exclusive limited license to use the Hulu Services... including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes." So showing the video via Hulu in class would be acceptable. If the episode is no longer retained on Hulu, and the faculty member has recorded a portion or the whole program to show at a later time then the use would violate the Hulu's terms of use. Hulu's terms deny users the right to "copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Hulu in writing." See also this link about streaming media in the classroom.
SCENARIO 13: A teacher or student prepares and gives a presentation that displays copyright -protected photographs without seeking copyright permission.
FAIR USE? Yes. The Code of Best Practices in Fair Use for Media Literacy Education suggests that this use is acceptable but requires the presenter to credit the sources, display the copyright notice, and provide copyright ownership information.
What if the presentation incorporating the photographs discussed in SCENARIO 13 is broadcast to a distant classroom?
FAIR USE? Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.
What if the presentation discussed in SCENARIO 13 is broadcast to students at their homes or offices?
FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.
What if the teacher's or student's presentation explained in SCENARIO 13 is videotaped?
FAIR USE? Yes. This use would be considered fair use, if the videotape is used for educational purposes such as student review or if the videotape is for instruction.
What if the SCENARIO 13 presentation incorporating the photographs is videotaped and rebroadcast? Is this a fair use?
FAIR USE? Yes. The use of the photographs is fair use as long as the presentation is videotaped and rebroadcast only for instruction.
FAIR USE? Remixes are a fairly new concept in the copyright world. Copyright experts are not in agreement about the legality of remixes. Generally, however, mashups are considered a derivitive work that transforms the original and therefore covered under fair use. It is still important to apply the four factors (purpose and character, nature, amount and potential market of the work) to ensure the you are making a good faith effort to adhere to fair use practices.
What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 13?
FAIR USE? Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.
SCENARIO 14: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation. Can the music be included in the teacher's or student's initial presentation?
FAIR USE? Yes. This is fair use if instruction is occurring.
What if the teacher's or student's presentation described in SCENARIO 14 is videotaped?
FAIR USE? Yes. This is fair use if instruction is occurring.
What if the SCENARIO 14 presentation is videotaped and rebroadcast?
FAIR USE? The answer is not clear. If instruction is occurring and there are no admission charges to the rebroadcast, the presumption is that it may be fair use. Tuition and course fees do not constitute admission fees.
What if the SCENARIO 14 presentation is included in an electronic presentation (excluding the Internet)?
FAIR USE? Yes. This is fair use if instruction is occurring.
SCENARIO 15: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester.
FAIR USE? Yes, as long as the use of the presentation continues to be for instruction.
What if the opera classroom presentation (SCENARIO 15) or the presentation containing background music (SCENARIO 14) is placed on the Internet?
FAIR USE? Yes, so long as access is restricted, e.g., by use of a password or PIN or other means.
SCENARIO 16: Institution A creates a telecourse. The course contains copyrighted text, video, audio, and photographs relevant to the class. If Institution A did not obtain permission to use the copyrighted materials, can Institution A show the videotape of the telecourse to students who have signed up for a telecourse at Institution A?
FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.
Assume same facts as in SCENARIO 16. If Institution A did not obtain permission to use the copyrighted materials, can students at Institution B enroll and receive credit for the course at Institution B?
FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.
Assume same facts as in SCENARIO 16. What if the telecourse is transmitted via the Internet?
FAIR USE? If the telecourse is broadcast and there is open access, the audience is no longer clearly defined. A rebroadcast over the Internet to a global audience is probably not a fair use. A restricted broadcast of the telecourse is a fair use.
SCENARIO 17: A faculty member at Institution C creates a searchable database of copyrighted materials. The database is used as a part of a distance learning course and is available on the institution's webserver. Students enrolled in the course access the course materials from home, work, and other areas that are not traditional classrooms. Access to the database is controlled and available only to students enrolled in the class. The faculty member did not obtain permission to use the copyrighted materials.
FAIR USE? Yes. So long as the materials are being accessed for educational instruction and access remains controlled.
SCENARIO 18: A student is taking a distance learning class in which the instructor has required that a particular assignment be created for unlimited distribution on the web. A student includes an audio segment of copyrighted music (video, news broadcast, non-dramatic literary work).
FAIR USE? No. Since the teacher specifically stated that the project is being created for distribution over the web, this is not a fair use of any of the listed copyrighted materials and permission should be obtained.
Same facts as SCENARIO 18, however, access to each student's Web page will be restricted to other students in the class.
FAIR USE? Yes.
SCENARIO 19: An instructor is teaching a class delivered on the ICN and she uses a commercial videotape (either in its entirely or a portion), which is sold for instructional purposes, during a class to illustrate a concept covered in the discussion.
FAIR USE? Yes. She is using a commercial video for its intended purpose. Moreover, it is being used to illustrate a concept connected with the class discussion.
Same facts as SCENARIO 19, but the class is distributed over the Internet.
FAIR USE? This is a fair use only if access over the Internet is restricted.
Same facts as SCENARIO 19, but the videotape is not "educational" in orientation.
FAIR USE? Distribution over two-way interactive video or cable television controlled by the institution would be fair use, as would restricted distribution over the Internet. Unrestricted distribution over the Internet is not a fair use.
SCENARIO 20: A faculty member records a segment from a television program. The segment will be shown in an ICN class the following day. The remote sites will record the class in the event of technical difficulties.
FAIR USE? Yes.
Assume there are technical difficulties in SCENARIO 20 and the remote sites replay the tape containing the program segment.
FAIR USE? Yes. The use is for instructional purposes.
SCENARIO 21: Institution E records an ICN class that contains copyrighted works. The tapes are kept for the entire quarter to serve as review for students who may have missed a class or as backup in the event of technical difficulties. At the end of the term, the tapes are erased.
FAIR USE? Yes.
What if the professor who conducted the class in SCENARIO 21 decides to show the tape to her continuing education class (or to a community group)?
FAIR USE? Yes, showing the tapes to her continuing education class is fair use if she is using the material for educational purposes and no admission fee is charged. Showing the tape to a community group may or may not be a fair use. The fact that the user of the tapes is a professor does not make the showing of the tape to a community group an educational use. One would need to conduct a fair use analysis.
SCENARIO 22: Institution E records a class presented on the ICN that contains copyrighted text, video, audio, and photographs that are relevant to the class. Institution E rebroadcasts the videotape to a class at Institution F.
FAIR USE? Yes. It is fair use since instruction is occurring.
SCENARIO 23: A professor wants to add a book chapter to the library's electronic reserve system.
FAIR USE? Yes. The chapter may be added if access to the system is limited to students enrolled in the class.
SCENARIO 24 : The professor in SCENARIO 23 will be teaching the same course for three successive terms. She wants to leave a book chapter on the electronic reserve system for this period of time.
FAIR USE? No. Copyright permission would need to be acquired from the rights provider to use material more than the one time fair use standard.
