Fair Use Scenarios: Classroom Handouts
The following scenarios encompass common examples of the application of fair use when instructors make a reproduction of copyrighted materials for handouts in the classroom. Because fair use seldom offers simple, clean, concise rules–and every situation will have its own set of facts–these scenarios should help instructors make fair-use determinations. Fair use is based on an application of four factors set forth in the Copyright Act.
Scenario: Journal Articles
Professor would like to make copies of a single fact-based journal article for a handout in her classroom. The article is relevant to the course she teaches. Professor made a copy of the same article last year for the same course.
Purpose: The purpose of copying the journal article is educational, which weighs in favor of fair use.
Nature: The nature of the work is factual, which weighs in favor of fair use. Amount: A single article from a journal may be considered an entire work by itself, which can tip this factor against fair use. If the use of the entire work is necessary for educational purposes, the amount may be appropriate.
Market Effect: Copying for use in one semester may have only minimal market effect, but repeated copying can begin to compound the market harm. At some point, ongoing copying may begin to tip this factor more strongly against fair use. On the other hand, if the particular article is not licensed or marketed for such uses, the harm here will likely be slight at most. Alternatives: Professor should investigate whether the library subscribes to a database, which includes the desired articles. If so, students should be able to make use of the articles by accessing the university library website.
Scenario: Newspaper Articles
Professor would like to make copies of multiple newspaper articles spanning several weeks from a local paper for use in her classroom. The articles are news items and are relevant to the subject of the course. Professor subscribes to the newspaper.
Purpose: The purpose of copying the news articles for classroom use is educational, which weighs in favor of fair use.
Nature: The news articles are fact-based, which weighs in favor of fair use.
Amount: Copying only a single news article and not the entire newspaper probably weighs in favor of fair use.
Market Effect: A one-time use of this article for the benefit of the students enrolled in the course probably creates little or no harm to the market. Traditionally, the market for news was limited to just a few days. Today, however, some news articles are marketed indefinitely through databases. Continuous use of an article may therefore tip against fair use.
Alternatives: In this scenario, Professor should investigate whether the university library subscribes to a database, which includes the desired articles. If so, students should be able to make use of the articles by accessing the university library website. If the course requires steady copies of articles from one newspaper, student subscription at favorable rates may be a good alternative.
Scenario: Chapters from Novels
Professor would like to make copies of several single chapters (some being quite lengthy) from multiple novels for a literature course, to distribute as handouts to students in her class. Each chapter is relevant to the course. The library owns each novel. Because the chapters are from separate works, the instructor needs to evaluate fair use with respect to each one individually; most often the analysis will be the same.
Purpose: The purpose of copying the book chapters is educational, which weighs in favor of fair use.
Nature: The law of fair use applies more narrowly to highly creative works, such as novels. The creative nature of novels often weighs against fair use.
Amount: Copying brief excerpts of an entire work may weigh in favor of fair use. Isolated, individual, and short chapters may be satisfactorily brief. However, because of the highly creative nature of novels, and the fact that some chapters are quite lengthy, the professor should consider copying shorter excerpts if the educational goal of using the material can still be achieved.
Market Effect: Limiting the distribution of copied materials to only the students enrolled in the course may tip this factor in favor of fair use.
Alternatives: Professor may want to consider creating either a hardcopy or electronic coursepack by seeking permission from the copyright owners of the materials. If the materials are used semester after semester, Professor or the library should consider purchasing multiple copies of the books to make them available to students each semester. If the novels are available at a reasonable price for Professor should require each student to buy a copy of each book.
Professor would like to make copies of an unused, commercially printed workbook he owns which corresponds to the course he teaches. The workbook is relevant to the course.
Purpose: The purpose of copying in this scenario is educational, which weighs in favor of fair use.
Nature: Workbooks are “consumable” materials, which may weigh against fair use. These types of materials are marketed specifically for students such as those enrolled in the course. These materials are meant to be used and replaced regularly and not routinely copied.
Amount: Copying significant excerpts or the entire workbook would weigh against fair use. Market Effect: Workbooks are created for the educational market and students are the main purchasers of such materials. Providing students with these materials may deeply affect the market for them and therefore may weigh heavily against fair use.
Alternatives: Permission from the copyright owner should be obtained before copying significant portions from “consumable” materials. Instructors should also consider having students purchase the workbooks.
Professor would like to make copies of portions of a book of poems he owns that has been out of print for five years. Professor plans only to copy portions of the book, which are relevant to the course. Professor believes this book to be the best tool for teaching the course.
Purpose: The purpose of the use of poetry is educational, which weighs in favor of fair use.
Nature: Fair use applies more narrowly to highly creative works such as poems. The nature of these works probably weighs against fair use.
Amount: Limiting the amount of material used to brief excerpts of an entire work weighs in favor of fair use. On the other hand, each poem will probably be treated as an entire work, and excerpts of a single poem may or may not be adequate for educational purposes.
Market Effect: Although the book is out of print (and therefore there is no current market), the copyright owner of the collection or of each poem may decide in the future to re-offer the material for commercial purposes. Also, the copyright owner may be prepared to license the material for copying. These possibilities are “potential” markets.
Alternatives: When dealing with out-of-print materials, Professor should keep in mind that the materials may possibly be obtained through other sources available for purchase. The one book in question may not be the only source for the desired poetry.