Fair Use and Course Reserves

Copyright law makes faculty responsible for copyright compliance regarding copyrighted materials they distribute to their students, including materials digitized and distributed at the faculty member’s request through library reserves. 

Persons who are not licensed attorneys cannot offer legal advice. Library staff can advise faculty regarding Mabee Library's application of copyright law to library reserves. Advice provided is limited to what the library will and will not allow under its policies and within the operations it supports. This advice does not constitute legal advice.

Copyright law is inherently complex.  We have simplified the requirements for faculty as much as possible by providing a "Fair Use Checklist." This checklist, below, should provide helpful guidance in determining whether material can be placed on course reserve. You may also download a Fair Use Checklist in Word format.

Fair Use Checklist

Where the factors favoring fair use outnumber those against it, reliance on fair use is justified. When fewer than half the factors favor fair use, instructors should seek permission from the rights holder. Where factors are evenly split, instructors should consider the total facts weighing in favor of fair use as opposed to the total facts weighting against fair use in deciding whether fair use is justified. Not all the facts will be present in any given situation. Check only those facts that apply to your use. No single item or factor is determinative of fair use.

Complete and retain a copy of this checklist for each "fair use" of a copyrighted work in order to establish a "reasonable and good faith" attempt at applying fair use should any dispute regarding such use arise.

Factor 1: Purpose and Character of the Use

Favors Fair Use
[  ] Teaching (directly related to classroom use)
[  ] Research
[  ] Scholarship
[  ] Necessary for intended educational purpose
[  ] Restricted access (to students or other appropriate group)

Opposes Fair Use
[  ] Used for Entertainment
[  ] Denying credit to original author
[  ] Commercial Activity
[  ] Exceeds what is necessary for educational purpose
[  ] Profiting from the use

Factor 2: Nature of Copyrighted Work

Favors Fair Use
[  ] Published work
[  ] Factual or nonfiction
[  ] Non-consumable work

Opposes Fair Use
[  ] Unpublished work
[  ] Highly creative (art, music, novels, films, plays)
[  ] Consumable work (workbook, test)

Factor 3: Amount and Substantiality of Portion Used

Favors Fair Use
[  ] Small portion of work (no more than 10% of work not divided into chapters or having less than 10 chapters, or no more than one chapter of a 10 or more chapter work)
[  ] Portion is not central or significant to entire work (it is not "the heart of the work")
[  ] Portion used is appropriate for specific educational purpose
[  ] Access is limited to students enrolled in course for the term the course is offered

Opposes Fair Use
[  ] Large portion of work (more than 10% of work not divided into chapters or having less than 10 chapters, or more than one chapter of a 10 chapter or more work)
[  ] Portion is central and significant (it is "the heart of the work")
[  ] Portion exceeds what is necessary for educational purpose
[  ] Access is not limited

Factor 4: Effect on Market for Original

Favors Fair Use
[  ] User owns lawfully acquired or purchased copy
[  ] Permission for copy is readily available from publisher at a reasonable price
[  ] No significant effect on the market or potential market for copyrighted work
[  ] One or a few copies made
[  ] No similar product marketed by copyright holder

Opposes Fair Use
[  ] Use could replace sale of copyrighted work
[  ] Permission for copy is not readily available from publisher or Copyright Clearance Center at a reasonable price
[  ] Significant effect on the market or potential market for copyrighted work
[  ] Numerous copies made
[  ] Similar product marketed by copyright holder
[  ] Repeated or long term use
[  ] Made accessible on web or in a public forum

Revised for use by MidAmerica Nazarene University, based upon the Copyright Advisory Office at Columbia University’s "Fair Use Checklist" (http://www.copyright.columbia.edu/fair-use-checklist). The "Fair Use Checklist" is made available under a Creative Commons Attribution Only license by the authors Kenneth D. Crews (Columbia University) and Dwayne K. Buttler (University of Louisville).

Civil and Criminal Penalties for Violating Federal Copyright Laws

Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright owner under section 106 of the Copyright Act (Title 17 of the United States Code). These rights include the right to reproduce or distribute a copyrighted work. In the file-sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.

Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statutory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.

Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense. For more information, please see the website of the U.S. Copyright Office at: www.copyright.gov.

 

 

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This webpage includes some language, used with permission, from http://exlibris.colgate.edu/borrowing/Permissions.html#public