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What is the Fair Use Doctrine?

The Fair Use Doctrine is a provision of copyright law designed to allow the limited use of copyrighted works without the permission of the copyright owner. It was developed with education in mind and is specifically applicable to teaching, research, scholarship, comment, criticism, or news reporting in face-to-face situations. When specific guidelines are not provided in detail in a law, the general concept of Fair Use comes into play. For the proper use of copyrighted works in distance education, you may turn either to the general law of fair use, or the specifically applicable statute, Section 110(2) of the U.S. Copyright Act which identifies certain aspects of distance education applications. This statute has been revised by the TEACH Act of 2002.

How can I determine if Fair Use applies?

Four specific factors must be considered in each instance to help determine if fair use applies.

Purpose: must be for non-profit, educational use
Nature: of the material used (factual vs. fictional)
Amount: of material used (the percentage of a work used in relation to the whole)
Effect: on the existing permissions market as well as to the profit of the copyright owner.

Each of the four factors must be applied and weighed together to make a case for fair use.

Applying Fair Use

The Fair Use statute is ambiguous by design. Each of the above four factors must be considered in light of copyrighted work to help reach a responsible conclusion about Fair Use. Even though the Four Factor Use Test is codified in Section 107, Title 17, U.S.C (Copyright Act), it does not provide all the guidance necessary in properly applying the concept of Fair Use. Some of the explanations/elaborations on Fair Use will help provide additional guidance. The Copyright Management Center at Purdue University provides a Checklist for Fair Use that will help you to evaluate and to document your use of any copyrighted material.

Referencing the Work

When including portions of copyrighted materials under the Fair Use Guidelines, instructors must identify the following information for each piece of copyrighted material:

the source from which the material was taken
the identification of the copyright holder
the year of the material's publication
copyright notice (i.e., the '©' symbol)

UCF Fair Use Guidelines

1. Determine whether copyright law protects the work you plan to use

• Works in the public domain. (For an overview of works that are in the public domain, please consult the chart set forth at: http://www.unc.edu/~unclng/public-d.htm
• United States government works
• Works to which the author has clearly disclaimed a copyright interest
• The ideas, processes, methods, and systems described in copyrighted works
• Facts

2. Determine whether you want to exercise an exclusive right

Once you have decided that copyright law protects the work, determine whether you plan to exercise one of the copyright owner's exclusive rights. Federal copyright law states that a copyright owner has the exclusive rights to do or to license others to do any of the following:

• Reproduce or make copies of the work
• Prepare derivative works based on the work
• Sell, rent, or lease copies of the work
• Perform the work publicly
• Display the work publicly
• Perform the work by a digital audio transmission

3. Determine whether you are exempt from the requirement to obtain permission from the copyright owner

Federal copyright law sets forth four exemptions from the requirement to obtain copyright owner permission to exercise a copyright owner's exclusive right:

• The Library Exemption: Pursuant to United States Code, Title 17, Section 108, federal copyright law provides special rights to nonprofit libraries, such as the UCF library. This special exemption includes the right to archive lost, stolen, damaged or deteriorating works; make copies of works for library patrons; and make copies for other libraries' patrons through interlibrary loan.

• Face-to-Face Teaching: Pursuant to United States Code, Title 17, Section 110(1), members of our University of Central Florida community may publicly display and perform the copyrighted works of other people during our face-to-face teaching activities. In essence, United States Code, Title 17, Section 110(1) permits performance and display of any kind of copyrighted work, and even a complete work, as part of face-to-face instruction.

• Technology, Education, and Copyright Harmonization Act of 2002 (TEACH) Act: Pursuant to United States Code, Title 17, Section 110(2) which codifies the TEACH Act, certain transmissions of copyrighted works in distance education are also permitted.

• The Fair Use Exemption: Read the next section carefully to determine whether your use falls within the fair use exemption.

4. Apply the Guidelines (set forth under 5.-9. below) to determine whether you are exempt from the requirement to obtain permission

If your intended use of the copyrighted work falls squarely within the guidelines (set forth under 5.-9. below), you will most likely be free from liability for copyright infringement; however, there are no guarantees. United States Code, Title 17, Section 107 sets forth a four-pronged test to determine whether an intended use of a copyrighted work is fair:

(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 problem with this test is that it is highly subjective, and you never know whether your application of the test will result in the same answer as that of the judge who hears your case. For that reason, UCF has chosen to adopt the guidelines (set forth under 5.-9. below) rather than asking its employees or students to apply the four-pronged test.

The fact of the matter is, even if you follow the guidelines (set forth under 5.-9. below), it is theoretically possible that a plaintiff could sue you and UCF for copyright infringement. You as an individual, as well as UCF, will be in thebest position to defend such a lawsuit if you follow these guidelines when you use copyrighted material in your academic projects. The copyright law sets forth a good-faith fair use defense, and a successful claim for this defense will likely result if you follow the following guidelines.

5. Guidelines for Classroom Copying of Books and Periodicals

UCF has adopted the 1976 "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals," found at: http://www.musiclibraryassoc.org/Copyright/guidebks.htm Faculty should apply these guidelines when they make course packs containing excerpts from others' works.

6. Guidelines for Educational Uses of Music

UCF has adopted the 1976 "Guidelines for Educational Uses of Music," found at: http://www.musiclibraryassoc.org/Copyright/guidemus.htm Apply these guidelines when performing others' music, reprinting others' sheet music, and maintaining sound recordings of others' music, amongst other activities.

7. Guidelines for Digitizing and Using Others' Works in Electronic Reserves

UCF follows the "Fair-Use Guidelines for Electronic Reserve Systems," last revised at the "Conference on Fair Use" (CONFU) on March 5th, 1996, found at: http://www.utsystem.edu/ogc/intellectualproperty/rsrvguid.htm These guidelines apply to UCF's electronic reserve system, a storage facility for electronic versions of academic materials that students may electronically view and print.

8. Educational Fair Use Guidelines for Digital Images

Any time UCF employees or students digitize and use others' images (e.g., an art history slide collection for class use), they should follow the "Educational Fair Use Guidelines for Digital Images," developed during the CONFU process on December 3rd, 1996, found at: http://www.utsystem.edu/ogc/intellectualproperty/imagguid.htm

9. Fair Use Guidelines For Educational Multimedia

UCF has adopted the "Fair Use Guidelines for Educational Multimedia," issued in a non legislative report by the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives, on September 27th, 1996, found at: http://www.libraries.psu.edu/mtss/fairuse/guidelines.html Use these guidelines when using others' works in various forms of media as material in academic projects.

10. Seek permission from the copyright owner

Once you have applied the guidelines set forth above and determined that you do not fall squarely within their description of fair use, and you have determined that no other copyright exemption authorizes your use and no license grants you the right to use the work, we recommend that you visit the following web site: http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm where Georgia Harper from the University of Texas provides comprehensive guidance for obtaining permission to use a copyrighted work. UCF employees and students may also inquire with the UCF Library Reference Department with respect to obtaining information on how to contact the Copyright Clearance Center for permission to use a copyrighted work which is part of a book or journal article.

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