Teaching: Fair use judgment calls
A few types of teaching uses are clearly permitted by United States laws, including linking to existing public content, and some kinds of in-class use of video or audio!
Beyond that, instructors will have to make some judgment calls about what they share with students. A lot of different factors come in to play, and instructors, even in similar situations, may make different choices about their uses.
Making copies for students
It's not all that common anymore for instructors to make paper copies of reading materials for students, although some still do. More commonly, instructors may make materials like articles, book chapters, audio clips and video available on a course website. Linking to existing materials from a course website usually doesn't present any copyright issues, but uploading files to the course website is almost always a copyright issue - in much the same way that making paper copies is!
Instructors definitely can sometimes upload materials to course websites without seeking copyright permisisons - when this copying falls within the bounds of fair use, as provided by US copyright law.
Fair use allows some copying without permission, in support of socially beneficial things like criticism and commentary, news reporting, scholarship, and education. In fact, the statutory definition of fair use highlights classroom copying, stating that it includes "multiple copies for classroom use." (17 USC § 107.)
The same basic elements of fair use apply to all kinds of uses - by teachers, artists, researchers, reporters, and so on. If you are not already familiar with the basic four factors of fair use, you should probably start there!
Some fair use highlights for instructional use
- Less is more
Fair use is most likely to apply to the use of relatively small portions of works, and when the portion used is key to a specific pedagogical purpose. So while it may be acceptable to upload a film clip for students to watch in preparation for a class discussion of that clip, uploading longer portions of a film would be less likely to be fair use. Similarly, sharing a small portion of a book as a PDF might be acceptable, but it would rarely be fair use to upload an entire book.
- Online isn't special
Putting materials for students online is not fundamentally different from making paper copies for them - online copies are no more or less likely to be fair use than offline ones. Sometimes, information about copying suggests you might be responsible for what people do with digital files you give them, but that's not how the law usually works.
- Passwords aren't magic, but they're useful
Posting things to a password-protected course website is not really relevant to whether the copying fits inside of fair use or not. However, it may be relevant if you are thinking about the "market harm" factor - when you limit access to enrolled students, you know exactly how many people would have access to your copies, and thus the extent of some types of potential market harm.
- Sometimes you're supposed to pay!
Fair use does not cover all copying, and in particular it may not cover copying when a paid alternative exists. If you want students to have their own copies of a book, they may need to buy the book. If you want them to watch a movie, they may need to pay to view it via an online streaming service. The Libraries can help you explore options to reduce costs such as purchasing institutional copies of ebooks or streaming video, but this isn't always an option.
At the University of Minnesota, it is the instructor's right and responsibility to make determinations about fair use in course contexts, but the Libraries can help with that.
If it does not seem like a fair use to copy something as a course reading - if you need students to read several chapters of a book or watch an entire movie outside of class sessions, for example - you may need to seek permission. The Libraries' Copyright Permissions Service can help with that. Alternatively, you could provide original copies of the book or movie on Libraries reserve for students to check out and use on their own - it's less convenient than an online copy, but it doesn't raise copyright problems!
Case law about fair use in courses
Until quite recently, we didn't have much information about whether providing online copies for students fell within fair use. Many folks pointed to the 1990's "coursepack cases" (Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991); Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996)) as establishing the principle that all copies of course readings required permission and payment. However, those cases involved paper copies made by for-profit copy shops, and as it became more common for individual instructors to post readings online, some different interpretations arose.
In 2008, several academic publishers sued administrators at Georgia State University over files shared with students online. This case is ongoing, but the District Court opinion affirmed that some educational copying -is okay as a fair use-.
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This web site presents information about copyright law. The University Libraries make every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.