VCOM Faculty Handbook

Fair Use Doctrine Copyright law recognizes that not all uses of copyrighted works infringe the rights of the copyright owner. Section 107 of the Copyright Act states: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. "Fair use" of works do not require permission. Four factors are considered in determining whether a particular use is fair or not. Nonprofit educational purposes are generally favored in the application of the four factors of fair use, but an educational use does not by itself make the use a "fair use." No single factor dictates whether a particular use is fair use. All four factors must be considered in making a determination. • What is the purpose of the use? Fair use favors any use that is nonprofit, educational, or personal, especially if it is for teaching, research, scholarship, criticism, commentary, or news reporting. Fair use does not favor uses that are commercial, for profit, or for entertainment purposes. It is important to remember that not all educational uses are fair use. Transformative uses that transform or modify the original purpose of the work and contribute new intellectual value to the original work are often considered fair use. • What is the nature of the work? Since authors should have final say over when and how their works are published, fair use tends to favor published works over unpublished works. In addition, factual works are more likely to be considered available for fair use than creative works such as art, music, novels, films, and plays. • How much of the work will you use? Using a small amount generally favors fair use, whereas using a large amount weighs more against fair use. However, even a small amount of a work can be too much if it can be considered the heart of the work. • What effect will the use have on the market or potential market value of the work? Does the use deprive the copyright owner of income or undermine a new or potential market? If so, the use does not favor fair use. Duplicating Copyrighted Materials for Instructional Use Under certain conditions specified in copyright law, a photocopy or other reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a photocopy or reproduction for purposes other than "fair use", that user may be liable for copyright infringement. Primary and secondary school educators have, with publishers, developed guidelines that allow an instructor to distribute copyrighted photocopied materials to students in a class, without the publisher's prior permission, upon compliance with these conditions: • Only one copy is distributed for each student, which must become the student's property. • The materials must include a copyright notice and full citation on the first page of the portion of material photocopied. • The students are not assessed any fee beyond the actual cost of the photocopying. • The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course. • The effect of copying the material should not be detrimental to the market for the work. In general, the library should own at least one copy of the work.

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