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Copyright and Fair Use

Using copyrighted material in writing

Note:  The following are only a few examples.  Publishers' guidelines vary widely in regard to use of copyrighted materials. Making use of copyrighted materials in writing is allowable as long as each use meets the fair use guidelines.  

SCENARIO: A faculty member is writing a book comparing the work of three women poets, all of whose poems are copyrighted.  The professor would like to quote the poems in a nonfiction book.
GUIDELINE: This is one of the traditional types of fair use, that is, comment or criticism. A commentator or critic may quote from a copyrighted source as long as:

  1. the amount or extent of the quoted material is appropriate for the writer’s analysis;
  2. the writer articulates a clear relevance for selecting the passages used;
  3. quotations are reproduced as accurately as possible from the original source;
  4. appropriate attribution is given. It is good practice to seek permission from the copyright holder if possible.  

SOURCE: Aufderheide, P.; Coles, K.’ Jaszi, P.; Urban, J. (2011) Code of best practices in fair use for poetry. Center for Social Media and Poetry Foundation.  Retrieved from http://www.cmsimpact.org/fair-use/related-materials/codes/code-best-practices-fair-use-poetry (on 07 December 2015) 

SCENARIO: A professor wishes to use unpublished materials located in a university archives in a future publication.
GUIDELINE: Further information is required to determine whether this is fair use. Are the materials still under copyright or are they already in the public domain? If the author of the unpublished work has been dead 70 or more years, his work is in the public domain. The duration for an unpublished work for hire is 120 years from creation. Even if a proposed use is thought to qualify as fair use, restrictions may be present due to signed donor agreements or university policies. The professor should contact the archivist to learn more about the status of the materials in question.
SOURCE: U.S. Code, Title 17, Sections 302(a) and 302(c) (Duration of copyright: Works created on or after January 1, 1978)   

SCENARIO: A faculty member wishes to use material found on the Internet in projects, papers and other professional writing.
GUIDELINE: If the material is not in the public domain, copyright law and fair use applies to material published on the Internet.  Typically, it is fine to include links to point users to others' sites, but if excerpts are taken from webpages for use in projects, papers, etc., one must do a fair use analysis of each excerpt. In general, if the author excerpts and attributes a reasonable amount of another’s original work and shows its relevance in her new, transformative work, it likely fair use.
SOURCE: U.S. Code, Title 17, Section 107 (Limitation on exclusive rights: Fair use)

SCENARIO:  A faculty member has previously published an article in a journal.  She then decides to write a book and wants to use the article as a chapter. 
GUIDELINE:  The author should first check the contract that she has with the journal publisher to determine who holds the copyright and whether she is allowed to republish the article.

Making copies of copyrighted materials for files

SCENARIO: A faculty member wishes to make a copy of an article from a copyrighted periodical for her files to use later.
GUIDELINE: This is a classic example of personal fair use so long as the instructor uses the article for her personal files and reference.  However, the instructor may not print large quantities of articles from the same periodical as a substitute for purchasing a subscription.  That affects the market for the copyrighted work.
SOURCE: U.S. Code, Title 17, Section 107 (Limitation on exclusive rights: Fair use)

Copying out-of-print books for files

SCENARIO: A library has a book that is copyrighted. A professor would like to make a copy of the book to keep in her files for research purposes.
GUIDELINE: The professor will need to make a reasonable effort to determine if a copy is available for purchase. If the book is unavailable for purchase, the professor (but not the library) may copy the book for her files.
SOURCE: U.S. Code, Title 17, Section 107 (Limitation on exclusive rights: Fair use)

Sharing electronic subscription files

SCENARIO: A professor has an individual subscription to an online journal and wishes to forward articles to her colleagues.
GUIDELINE: Whether this is fair use depends on the terms of the subscription license.  If the license prohibits transfer to a non-subscriber, then this would not be a fair use.  In some cases, publishers will permit a subscriber to print a hard copy of the article to share but not to transfer the online copy.

Copying media into another format for home use

SCENARIO: A student or faculty member wants to check out a media item from the library. Unfortunately the patron does not have equipment at home compatible with the item’s current format. The patron wishes to have the item transferred to another format so that it can be played at home.
GUIDELINE: This would not be a fair use.  Library staff may not make copies of media for home use.  The student or faculty member will need to view the item in the library using the library’s equipment.
SOURCE: U.S. Code, Title 17, Section 108 (Limitation on exclusive rights: Reproduction by libraries and archives)

Providing technical assistance for unauthorized copies of media

SCENARIO:  An instructor or student seeks technical assistance to display or play a video or sound recording that appears to be an unauthorized copy.
GUIDELINE:  This would not be a fair use.  Webster University staff may not provide technical assistance if they know or reasonably believe that it was not lawfully made or acquired.
SOURCE: Webster University Employee Ethics Policy: The University and each community member must transact University business in compliance with all laws, regulations and University policies related to their positions and areas of responsibility.

Illegal downloading and/or copying on university computers

SCENARIO:  An instructor or student downloads copyrighted material and/or copies copyrighted materials outside the limits of fair use using a University computer.
GUIDELINE:  The University's Computer Technologies Acceptable Use Policy forbids copyright violations on University computers.