Copyright and Fair Use at Knox College

 

Knox College recognizes and adheres to federal copyright law governing the reproduction and dissemination of copyrighted materials even as it exercises and supports the fair use exceptions to federal copyright law that allow some educational uses of copyrighted material. Faculty, students, and staff are strongly encouraged to review and apply these guidelines when they are developing materials for courses, designing, and completing course assignments, and engaging in all other scholarly and creative work at the College.

 

Permitted Uses of Copyrighted Material

Copyright laws and fair use aside, we may often use – for readings linked to course pages, as textbooks, in course packs, etc. –

 

For further information about the appropriate use of various copyrighted material, see "Know Your Copyrights", a publication of the Association of Research Libraries:
http://www.knowyourcopyrights.org/resourcesfac/kycrbrochure.shtml

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Fair Use of Copyrighted Material

Other copyrighted material may be used by Knox faculty, staff, and students without the permission of the copyright owner only within the "fair use" provisions of federal copyright law (US Code Title 17, section 107).  The complete text of section 107 appears below.  Almost forty years of litigation over fair use as an affirmative defense has not resulted in firm definitions or regulations of what constitutes fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.  Fair use offers, instead, four broad measures or factors which should be weighed to decide on your own whether any use of copyrighted material qualifies for a fair use exception to copyright law.

 

These four factors are:

  1. The purpose and character of the use: Educational uses, such as teaching, scholarship, research, criticism, and comment are more likely to be seen as fair use than is commercial use. However, not all nonprofit educational uses are automatically "fair." In addition, fair use is more likely to be found when the use of the work is "transformative" rather than a mere reproduction of the work. A transformative use transforms the material taken from the original work by adding new expression or meaning, or by creating new information, new insights, or understandings. (e.g., parody, criticism, ),
  2. The nature of the copyrighted work: Greater copyright protection is given to "creative" works (e.g., fiction, poetry) than work that is more factual in nature. If a work is unpublished, use may be found to be unfair because in some circumstances, a copyright owner is entitled to determine the work's first publication.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Fair use favors using peripheral and/or small portions of a work over essential or large parts of a work. There is no specific number of words from a poem, paragraphs or chapters from a book, notes from a musical composition, or minutes from a film that may safely be used without permission. It is therefore important to consider the amount of the work used in proportion of the work as a whole. In addition, consider whether the portion used might be considered to be the "heart of the work," in which case use of even a small amount is less likely to be "fair."
  4. The effect of the use upon the potential market for, or value of, the copyrighted work: Does the use threaten or compromise the commercial value of the work? If the work can be purchased or licensed, or is otherwise commercially available for the educational market, that fact weighs strongly against a finding of fair use.

 

The fourth factor underscores the need to weigh all four of the factors together to reach a fair use decision. 

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What Do I Do Now?

The distinction between what is fair use and what is copyright infringement in a particular case will not always be clear or easily defined. Take these steps to determine the degree to which your current or potential uses of copyrighted materials meet Knox's adherence to federal copyright law: 

  • Discuss with your department's librarian published material in any format that you wish to use in a course; they can advise you about the library's licensed access to a wide variety of publications, and identify possible alternatives to copyrighted material.
  • Use this Fair Use Checklist to assess your use of any copyrighted material against the fair use factors; discuss the application of the fair use exception to your course materials with your department's librarian. http://departments.knox.edu/facdev/fairuse/fairusechecklistform2015.pdf
  • Retain a completed checklist for any fair use you make of copyrighted material for future reference when you may want to use the material again or in the case of a legal challenge. This will also alert you to your repeated use of the same material for the same course, which would probably fall outside any definition of spontaneous fair use.

Sooner or later you may identify a course reading which falls outside both fair use and permitted use.  Alternatives to consider then include licensing and selling single or multiple readings through the Knox bookstore, requesting permission to use an item directly from the publisher, or adapting a reading to fall within fair use.  Some readings will one way or another involve costs – either to students or to your department.

In general, frequent reviews of the currency and the publication formats in which your course readings appear are a good strategy for avoiding copyright issues and providing accessible and cost-efficient required readings for your students.

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US Code: Title 19, §107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and106A, 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.

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April 2015