Fair Use

The doctrine of fair use places certain limits on the exclusive rights of copyright owners by giving a user the right to make copies or recordings for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

The fair use doctrine was originally established through the courts, beginning as early as 1841 with Folsom v. Marsh, 9 F.Cas. 342. In 1976, Congress gave this long-established doctrine statutory recognition in Public Law 94-553, and the law became codified as Title 17, Section 107 of the United States Code.

The distinction between what constitutes fair use and what constitutes infringement is not always clear or easy to define, even for lawyers and judges. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. The following resources may be of help in making sure that you do not cross that vague boundary between fair use and infringement.

The Fair Use Section of the Copyright Act (17 U.S.C. § 107)

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Recent Legislation Related to Fair Use

TEACH Act—P.L. 107-273, SEC. 13301 (U.S. Copyright Office)

On October 3, 2002, Congress enacted the “Technology, Education, and Copyright Harmonization Act,” which fully revises Section 110(2) of the U.S. Copyright Act governing the lawful uses of existing copyrighted materials in distance education. President Bush signed the Act into law on November 2, 2002 and it became effective immediately on that day. This statute specifies the terms by which educators may use pieces of copyrighted text, images, sound, and other works in distance education courses. It does not cover making copies of printed text materials available to students.

Guide to the TEACH Act (University System of Georgia, Office of Legal Affairs) provides a succinct explanation of the TEACH Act and clear guidelines for complying with the statute.

The TEACH Act Finally Becomes Law (UT System Office of General Counsel) provides brief summary and explanation of the act, as well as a handy checklist to see if the TEACH Act applies to your situation.

Distance Education and the TEACH Act (American Library Association) provides a legislative history, a summary of the act, and an explanation of its importance to distance education.

TEACH Act and Distance Education (Copyright Management Center at Indiana University) provides legislative materials, official reports, analysis, commentary, and provides tools instructors can use to implement the TEACH Act effectively in their distance education course.

The TEACH Toolkit (North Carolina State University) provides guidelines, checklists, a tutorial, and other resources to help your understanding of copyright and distance education.

Sonny Bono Copyright Term Extension Act—P.L. 105-298, Title I (U.S. Copyright Office)
(PDF file requires Adobe Reader)

This act, which extended the duration of copyright for works protected as of 1998, added a limited new exemption for certain libraries and archives in section 108 of the copyright law. The U.S. Copyright Office's Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price includes interim regulations (which include a complete explanation of requirements), a request for comments, and links to related forms.

Digital Millennium Copyright Act—P.L. 105-304 (U.S. Copyright Office)
(PDF file requires Adobe Reader)

This act, designed in part as a safeguard against piracy of software and other electronic information, has raised questions in the academic community about how it would limit the concept of fair use. Analyses of this act—with remarks on its implications for librarians, educators, and researchers—are available online from the American Library Association and the Association of Research Libraries.

UNT Resources for Faculty, Staff, and Students

UNT Copyright Compliance Policy (UNT)

The purpose of this policy is to: (1) provide a general outline of U.S. copyright law as codified in Title 17, U.S. Code; (2) encourage the lawful use of copyright-protected materials; (3) protect the University of North Texas against risk of copyright infringement; and (4) comply with federal legislation such as the TEACH Act and the Digital Millennium Copyright Act.

Intellectual Property Policy (UNT (UNT)

The purpose of this policy is: (1) to encourage the development of intellectual property for the best interest of the public, the creator(s), the University of North Texas (UNT), and the research sponsor, if any; (2) to provide for protection of intellectual property through patents, copyrights, and trademarks; and (3) to ensure that monetary and other benefits derived from intellectual property are equitably distributed to the creator(s), UNT and other parties as appropriate.

Use of Copyrighted Material in Electronic Theses and Dissertations (Toulouse School of Graduate Studies)

This brief guide explains the difference between plagiarism and copyright infringement and provides tips on how to determine whether you need to apply for copyright permissions for your thesis or dissertation.

Use of Copyrighted Materials (WebCT VISTA)

Advice to UNT instructors who wish to use copyrighted materials on a WebCT Vista course Web site.

Dichotomous Key for Using Reproduced Material (Toulouse School of Graduate Studies)

Step-by-step process for determining whether you have followed proper procedure in using copyrighted material in a thesis or dissertation.

Copyright: Ethical and Legal Issues (Dr. Carole Simpson)

PowerPoint presentation explaining what educators need to know about copyright.

Other Resources

Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (Clemson University)
[PDF format requires Adobe Reader]

These guidelines state the minimum standards of educational fair use under Section 107 of H.R. 2223. There may be instances in which copying which does not fall within these guidelines may nonetheless be permitted under the criteria of fair use.

The Conference on Fair Use: An Interim Report to the Commissioner (U.S. Patent and Trademark Office)

Attendees at the Conference on Fair Use (known as CONFU) discussed the development of guidelines in several areas, including use of copyrighted materials in educational multimedia, distance learning, digital images, electronic reserve systems, interlibrary loan and document delivery, and use of computer software in libraries. This draft interim report summarizes their progress as of December 1996.

Copyright and Digital Distance Education (U.S. Copyright Office)

Section 403 of the Digital Millennium Copyright Act required the Copyright Office to consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, and thereafter submit to Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the interests of users. This site includes a timeline as well as copies of all public notices, written comments, and other material relevant to this study.

Copyright and Fair Use (Stanford University Libraries)

Describes current legislation, cases, and issues, and gives a helpful Copyright and Fair Use Overview.

Copyright Crash Course (UT System Office of General Counsel)

This online tutorial will help you learn about how ownership of copyrighted materials works, what is fair use, and when and how to get permission to use someone else’s materials. The Copyright Tutorial links to relevant pages in the Copyright Crash Course and provides a test of your knowledge of copyright basics, especially in the distance learning context.

Copyright for Schools: A Practical Guide, by Carol Simpson (Linworth Publishing, Inc.)
Latest edition in Government Documents Reference, Call Number KF3020 .Z9 S57

The classic explanation of copyright, public domain, and fair use principles for K-12 library professionals.

The Copyright Website (Benedict O'Mahoney)

Breezy summaries of copyright law, fair use principles, digital information issues, and recent infringement suits, by a corporate counsel for a software development company.

Digital Copyright (Center for Democracy and Technology)

CDT is committed to the principle that copyrighted material should be protected from largescale unauthorized copying, but argues that this protection should not come at the expense of reasonable consumer expectations regarding the use of copyrighted works or digital technologies, consistent with traditional copyright principles. Nor should it come at the expense of new and innovative communications networks, such as the Internet, that hold out tremendous promise to promote expression, economic growth, and civic discourse.

“The Economy of Ideas,” by John Perry Barlow (Wired Magazine Group Inc.)

A thoughtful essay on the problems inherent in trying to copyright or patent virtual intellectual property, written by the co-founder and executive chair of the Electronic Frontier Foundation, a non-profit civil liberties organization working to protect privacy, free expression, and access to public resources and information online.

Educational Fair Use Guidelines for Distance Learning (UT System Office of General Counsel)

These guidelines were developed in 1996 during the Conference on Fair Use (CONFU), an attempt by several stakeholders to negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts. Since there was never any full consensus reached, their authority is questionable, but they may provide a useful starting point for institutions wishing to produce their own guidelines.

The Engine of Free Expression: Copyright on the Internet (National Music Publishers' Association)

NMPA’s Internet Anti-Piracy Task Force has prepared this paper to explain how, in this computer-driven Age of Information, copyright protection, far from being inconsistent with the rights of free speech and freedom of information, is the very engine of free expression, and why it is especially important that the Internet serve as a nurturer—and not as a destroyer—of the incentive to create that drives the marketplace of ideas.

“The Evolving Law of Copyright and the Internet: Recent Developments in Fair Use Under the Copyright Act,” by June M. Besek (Computer Law Association) [archived in the Internet Archive]
[PDF file requires Adobe Reader]

Summaries of selected historic court cases related to fair use.

Fair Use (Stanford University)

Explains the various rules behind the fair use principle and provides several examples of fair use lawsuits.

Fair Use Guidelines for Educational Multimedia (UT System - Office of General Counsel)

Full text of guidelines advising professors and students on acceptable uses of multimedia materials for educational purposes that would not infringe on owners' copyrights. Guidelines were developed during the 1997 Conference on Fair Use (CONFU) and have been endorsed by numerous publishers, organizations, and government agencies.

Getting Permission to Publish: Ten Tips for Web Masters (Nolo Press)

Even though technology has made information more accessible to everyone, copyright and trademark laws still apply to Web publishing and Web sites are common targets for infringement lawsuits. Here are some tips that can help you avoid legal trouble when you want to use someone else’s work on your Web site.

Guidelines for Classroom Copying (Association of American Publishers)

States the minimum standards for educational fair use under Section 107 of HR 2223.

Guidelines for Educational Use of Copyrighted Materials (WSU Press)
Online version available to UNT community through NetLibrary
Paper copy available in Government Documents Reference on Third Floor of Willis Library, Call Number KF3020 .G85 1997

Originally prepared for use at Washington State University, this manual provides guidelines for all who work in a university or library setting, enabling them to be in compliance with the law without undue impediments to effective teaching and research.

Guidelines for Off-Air Taping for Educational Purposes (UC Berkeley Library)

These guidelines, also known as the Kastenmeier Guidelines, first appeared in the Congressional Record on October 14, 1984. Because copyright laws did not address the question of the legality of videotaping television programs for instructional use, the U.S. House of Representatives issued these widely accepted suggestions relating to the fair use of off-air taping.

How to Request Copyright Permission from Publishers (Association of American Publishers)

The law requires that permission be obtained before using copyrighted materials in college course anthologies. Publishers want to make their materials available to you quickly and inexpensively, but they need your cooperation. Whether you request permission yourself or through a college store or copy service, these suggestions will speed the process. Includes a Standard Permission Request Form.

Intellectual Property and the National Information Infrastructure (U.S. Patent and Trademark Office)

Commonly known as the "White Paper," this report of the White House Information Infrastructure Task Force (IITF) Working Group on Intellectual Property Rights explains how intellectual property law applies to cyberspace and makes legislative recommendations to Congress on how to fine tune the law for the digital age.

Intellectual Property, Copyright, and Distance Learning (University of North Carolina at Chapel Hill)

The increasing number of online courses and use of the Internet in distance learning is redefining copyright protection boundaries on intellectual property. This site links to Web-based articles that review the literature in this area or that pose substantive arguments as to the current state of affairs and where we may be going on this issue.

Legal Issues to Consider When Digitizing Collections (Colorado Digitization Program)

Quick reference guide to inform organizations with digital collections about legal issues such as copyright, privacy and publicity rights, donor restrictions, and licensing or trademarks.

Linking Policies for Public Web Sites (Law Library Resource Exchange)

Legal issues to consider when linking to content on other Web sites.

Regents Guide to Understanding Copyright and Educational Fair Use (University System of Georgia)

This guide, prepared for the University System of Georgia, summarizes and explains copyright law for educators, links to the relevant laws, and provides extensive examples of situations that may come up.

Reproduction of Copyrighted Works by Educators and Librarians (United States Copyright Office)
[PDF format requires Adobe Reader]

This circular provides basic information on some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators.

UC Copyright (University of California)

This site assembles a wide range of materials related to the use of copyrighted and public domain materials by educational institutions and individuals in an academic setting. It includes an explanation of copyright ownership, advice on how to use copyrighted works, UC policies and resources, and an FAQ.

The United States Copyright Law: A Guide for Music Educators (The National Association for Music Education)

Guidelines for legally reproducing, recording, arranging, distributing, performing, and displaying copyrighted works in the context of music education. Using the simple ideas put forth here, music educators will be able to better focus on the core job of teaching and to protect themselves and their schools from liability—the unpleasant possibility of being sued.

Web Law FAQ (Oppedahl & Olson LLP)

These are answers to some frequently asked questions relating to the use of intellectual property on the World Wide Web.