California Northstate University Fair Use Act Policy
In order to balance the needs of users with those of rights holders and to preserve copyright's purpose to promote science and the useful arts, copyright law contains a number of exceptions.
- Section 107: Fair use — Permits use of copyrighted material without acquiring permission. Examples of fair use include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research.
- Section 108: Library copying — Allows libraries to make copies of works for preservation, research and study, and inter-library loan.
- Section 109(a): First sale doctrine — Limitation on the copyright holder's distribution right that states that once a copy of a work has been lawfully sold, the owner of the copy is free to resell it, rent it, loan it, or give it away. Allows for library lending, video rentals, used book and CD sales, and the ability to give copyrighted materials as gifts.
- Section 109(c): Exception for public displays — Allows the owner of a lawfully made copy of a work to display it to the public at the place where the work is located. Allows for display of art in museums and bookstore and library displays, for example. Section 110(1): Displays and performances in face-to-face teaching — Allows for the performance and display of copyrighted materials in the course of face-to-face teaching at nonprofit educational institutions.
- Section 110(2): Displays and performances in distance education (TEACH Act) — Ability to display or perform certain types of copyrighted works in the course of
distance education. Use of 110(2) is subject to many conditions, including establishing institutional policies and implementing technological controls.
- Section 117: Computer Software — Owners of computer software can make backup copies and modify the software so that it works on a specific computer platform.
- Section 120: Architectural Works — Anyone may take and use photographs of publicly visible buildings without infringing the copyright in the architectural design.
- Section 121: Special formats for the blind or other people with disabilities — Organizations that serve the disabled can reproduce or distribute copies of previously published, non-dramatic literary works in specialized formats for use by the blind or other persons with disabilities.
Many of the exceptions in copyright law apply only to certain types of works under very specific conditions. The exceptions can be difficult to understand and apply without the advice of a lawyer. In contrast, fair use is easier to understand, applies to all types of works, and is flexible. It is for these reasons that this guide recommends relying on fair use when deciding when and how to use (or not to use) third-party copyrighted material in online education.
Instructors of online courses do NOT have the same copyright protections as those teaching physical face-to-face courses, so there are extra precautions you must take when creating an online course.
Images, videos, audio, and text can all be meaningful additions to your course content. Before incorporating an image in lecture slides, reposting an article in Canvas, or adding a video file created by someone else, consider these questions:
- How does this material (image, text, video, etc.) help me to make my point?
- Do I need this particular item to make my point or is there a potential substitute?
- How much of this material do I need to use? Is it possible to use only a part of it?
- Is my use "transformative;" in other words, have I made the link between the material and the point I wish to make clear?
Instructors may be able to make a better fair use case for content posted in Canvas if they do the following:
- Use only brief quotations from the literature of a discipline and incorporate them into a lecture and/or the accompanying slides.
- Directly critique or comment on the image in the slide. For instance utilize a graph, and mention in the commentary how the graph relates to a larger point.
- Utilize materials that are "factual" instead of materials that are "creative" in nature.
In all cases, instructors should make an attribution to the original source in their slides or other class materials. If including attribution on the particular slide or at the time when the work is used would harm the flow of the instruction, acknowledgment may appear at the end of an individual lecture. It is preferable to link out to files if they are available on the web. Doing this decreases the chances that the course will be subject to a “take down” notice.
If it isn't feasible to create your own image or locate an open access image, consider searching a stock photo image site some listed below to find licensed content.
If you've located an image somewhere else, try to make a fair use determination. If you are unable to do so, you may need to ask for permission.
- Examine the image's relationship to your learning goals and objectives. If it isn't necessary for learning or integral to the point of the lesson, consider removing it. Pictures or figure should be subjected to commentary and critical assessment.
- Use the material in a "transformative" way; that is, the purpose of the use in the course is completely different from the original purpose of the material. Examples of "transformative" use could include juxtaposing images next to each other to show differences, or overlaying commentary or drawings on top of an image to highlight particular features.
- Use diverse sources (not too much reliance on a single source), and the number of images should be limited.
- Use licensed substitute (such as a picture carrying a Creative Commons license or dedicated to the public domain) when a general picture is needed to depict a subject but a particular picture of that subject is not required.
If you are unable to use public domain or openly licensed (e.g., Creative Commons) materials AND are unable to make a good fair use argument or use another copyright exception, you may need to get permission to reuse all or part of a work. Note that musical compositions have two layers of copyright: one over the music and lyrics and another over the sound recording.
- Use of other musical or sound recordings should be evaluated carefully and on a case-by-case basis. Popular music or videos should be given extra scrutiny.
- Instructors are encouraged to use documentary, educational, older, or historic films and videos wherever possible.
- It is preferable to link out to a sound file if one is available on the web. In those cases, students would be directed to follow the link, and then return to the lecture. This is especially appropriate when the entirety of a video or audio work must be seen or heard before the lecture will continue.
- Files used should generally not be longer than is needed to make the pedagogical point.
- If possible, the discussion of what students are hearing should be intermingled with audio and video files.
- When a substantial clip of audio or video, which will not be intermingled with discussion, is incorporated into the lecture, rather than linked to, permission should
Measuring Fair Use: The Four Factors
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.
The four factors judges consider are:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
The Transformative Factor: The Purpose and Character of Your Use
In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
- Purposes such as scholarship, research, or education may also qualify as transformative uses because the work is the subject of review or commentary.
The Nature of the Copyrighted Work
You will have a stronger case of fair use if you copy the material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.
The Amount and Substantiality of the Portion Taken
The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work. For example, it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song “Satisfaction.”
The Effect of the Use Upon the Potential Market
Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.