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Fair Use and Copyright for Online Education: Examples: Textual Materials

Presents copyright concerns regarding online instruction and offers guidance in applying fair use when appropriate.

Two key fair use questions

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

— Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries (2012)

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S.C. § 107

 

Tips for using textual materials in online education

To best position yourself to assert a fair use argument when using textual materials, consider doing the following:

  • Link to the texts if possible rather than making an electronic copy available to students. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
  • If copying a text, use no more than is needed to serve your purpose.
  • Avoid copying materials created and marketed primarily for use in courses such as the one at hand (e.g. a textbook, workbook, or anthology designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
  • Make sure that the texts serve a pedagogical purpose; do not use as entertainment.
  • Place the texts in the context of the course, explaining why they were chosen and what they are intended to illustrate. Recontextualize the texts when appropriate through the addition of study questions, commentary, criticism, annotation, and student reactions.
  • Limit access to the texts to students enrolled in the course.
  • Notify students that the texts are being made available for teaching, study, and research only.
  • For each text, provide an acknowledgement of the source, copyright, and publisher.

Resources for using textual materials in online education

Disclaimer

The examples below are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. This guide is not intended as legal advice. If you have legal concerns about a particular use at the University of Rhode Island, please contact the university's General Counsel

Texts example #1

Professor Kassabian is teaching an online course about global health. For a segment on pandemics, he would like the class to read a chapter from Spillover: Animal Infections and the Next Human Pandemic by David Quammen (Norton, 2012). He photocopied the chapter from his copy of the book and asked the library to scan the copy to PDF and place it on e-reserve. The scanned copy of the chapter includes the book's title and copyright information of the book, and the course syllabus provides a complete citation for the chapter. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

No, Professor Kassabian's use is not transformative, since he is using the chapter for the same reason as its original purpose—to convey information about the danger of potential pandemics.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Even though Professor Kassabian's use is not transformative, he is using the material to instruct students at a nonprofit educational institution, a favored purpose for fair use. In addition, the chapter is a work of nonfiction and is factual in nature, which also favors fair use. Professor Kassabian's decision to use only one chapter of the work also favors fair use, as this is not likely replace sales of the book, especially since the book was not marketed as a textbook. In fact, Professor Kassabian's use of the chapter might improve the market for the book if students decide to purchase copies in order to read further. The fair use argument is strengthened because the chapter was not placed on the open web but limited through the library's e-reserve system to registered borrowers and because the professor clearly acknowledged the source, copyright, and publisher.

Fair use: Yes.

Texts example #2

Professor Hallberg-Smith teaches a hybrid course in econometrics. Instead of using an expensive textbook, she posts course content in Sakai that she herself wrote. During class sessions students work in groups to solve and review problem sets, and she takes questions about the readings and the problems. Hallberg-Smith has not had time to create her own problem sets for the course; instead she uses problems from the texbook Introduction to Econometrics written by James H. Stock. Aware of the high cost of this book, Professor Hallberg-Smith does not want students to have to buy it just for the problem sets, so she scans the problems to PDF and posts them in Sakai for students to download and use. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

No, Professor Hallberg-Smith's use is not transformative, since she is using the problem sets for the same reason as their original purpose—to instruct students in concepts and applications in econometrics.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Even though Professor Hallberg-Smith's use is not transformative, she is using the material to instruct students at a nonprofit educational institution, a favored purpose for fair use. In addition, the problem sets are factual in nature, not creative, and this favors fair use. Professor Hallberg-Smith is not using Stock's entire book, but only the problem sets, which would favor fair use, as this is not likely to replace the sale of the book. However, since the market for Stock's text is students taking econometrics courses, the copyright holder could argue that Professor Hallberg-Smith's use damaged the market for the work, since if other instructors were to copy material from the book instead of having students purchase it, the market for the book would be diminished. According to the Code of Best Practices in Fair Use for Academic and Research Libraries, "Closer scrutiny should be applied to uses of content created and marketed primarily for use in courses such as the one at issue (e.g., a textbook, workbook, or anthology designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use." The fair use argument is helped, however, by the fact that the problem sets were placed in Sakai and limited to students enrolled in the course. 

Fair use: Probably not.

Possible alternative: Professor Hallberg-Smith might be able to find acceptable problem sets for her class by searching the many sources of Open Educational Resources on the web, or she could create her own.

Texts example #3

Professor O'Leary is teaching a face-to-face course in 20th century American history. He uses Sakai to post his syllabus and some course materials and to allow students to submit assignments and engage in discussion forums. Before he gives his lecture on the Cuban Missile Crisis, he wants students to understand just how frightening this incident was for many people at the time. As primary source material, he plans to assign several articles from newspapers and popular periodicals such as U.S. News & World Report published during the time period. Unfortunately, none of these articles is online, but the library has them on microfilm. He uses the library's microfilm reader to create digital scans of each of the articles and posts them in Sakai for his students to read. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor O'Leary's use is transformative, since he is using the articles in a different context from the one in which they originally appeared. The articles' original purpose was to convey news and analysis of the events surrounding the Cuban Missile Crisis as they occurred. Professor O'Leary, on the other hand, has placed the articles within a broader context of 20th century American history. We can presume that this context requires both the professor and the students to discuss and analyze the articles as historical evidence of how people perceived the events at that time. This is a transformative use.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Professor O'Leary is using the articles for noncommercial educational purposes, and his use is transformative; this favors fair use. Also favoring fair use is the fact that the articles are factual in nature and not creative works. Professor O'Leary used the entire articles, which might weigh against fair use, except that he is using the appropriate amount required for his transformative purpose. Since the articles were published in periodicals over fifty years ago, there is no evidence of market harm caused by Professor O'Leary's use. In addition, the articles are posted in Sakai and available only to students in the class, which demonstrates good-faith behavior on the part of the professor.

Fair use: Yes.

Texts example #4

Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the student's textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the text with some additional material. To do this, she selects individual poems from a variety of poets, scans them, and posts them to the course reading section of the course's Sakai site. One of the poems she wants students to read is the book-length The Book of Nightmares (Mariner, 1973) by Galway Kinnell, so she scans the 88-page book to PDF and uploads it to Sakai. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Garcia's use is transformative. The original purpose of The Book of Nightmares is aesthetic. Professor Garcia is using the poem to instruct students in the themes, techniques and development of modern American poetry. She places the work in question in the broader context of the other readings in the course, and we can presume that she will offer critical commentary about the poem and explain its significance within this framework.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Professor Garcia's use is transformative, and she is using the work for nonprofit educational purposes, both of which strongly favor fair use. Not favoring fair use, however, is the fact that the work is highly creative and that she reproduced it in its entirety. The book is still in print, thus the rightsholder could make a strong argument that the professor's use (and similar uses, were they to occur) damaged the market for the book. The fair use argument is helped by the fact that the book was placed in Sakai and access was limited to students enrolled in the course. The fact that students can download the file and potentially redistribute it, however, is a liability.

Fair use: Probably not.

Texts example #5

Professor Chen is teaching an online course titled Frontiers in Biotechnology. This week's topic concerns the use of genetic information in the context of personalized medicine. Professor Chen would like students to read this article:

Gholson J. Lyon, "Personalized medicine: Bring clinical standards to human-genetics research." Nature 482 (16 February 2012): 300-301. doi:10.1038/482300a

Professor Chen downloads the article PDF and posts it to Sakai for students to read. Is this fair use?

Analysis

Note: Professor Chen does not need to rely on fair use in this case because the University of Rhode Island has a site license to Nature online that allows the university to make the licensed content available to authorized users for the purposes of research, teaching, and private study. This includes the right to reproduce individual articles for distribution to students as course readings and to create hypertext links to the licensed content as long as access is restricted to authorized users. Authorized users are defined as faculty, staff, enrolled students, and walk-in users of the library.

Texts example #6

Professor Mallilo is teaching a small graduate seminar on the topic of transportation in American history. She would like her students to read the book Railroads and the American People, by H. Roger Grant (Indiana University Press, 2012). The book is 307 pages long and is composed of four chapters. Professor Mallilo is pleased to note that the URI Libraries have an e-book version of the book through Project MUSE. She links to the book's main page from her syllabus. For some reason, two students in the class are having trouble accessing the book online. Without taking the time to troubleshoot their access problems, Professor Mallilo downloads each of the chapters in PDF format, attaches them to an email, and sends them to the students in the class. Is this fair use?

Analysis

Note: Professor Malillo does not need to rely on fair use in this case because a license agreement governs the University of Rhode Island's use of e-books on the Project MUSE platform. The license allows authorized users to distribute a copy of individual e-book chapters in print or electronic form to other authorized users, including the distribution of a copy for noncommercial educational purposes to each individual student in a class offered by URI. The license also allows users to link to e-book chapters for courses. Authorized users are defined as faculty, staff, students, and walk-in users of the library.

Texts example #7

Professor Meghani is teaching an online philosophy course. She is trying to save her students money by putting as much of the reading in Sakai as possible. She wants students to read The Communist Manifesto by Karl Marx and Frederick Engels, which was originally published in 1848. She has a copy on her bookshelf that was edited by John E. Toews and published in 1999 by St. Martin's. Since it is not very long, she decides to scan the book and upload it as a PDF file to Sakai. She plans to scan only the text of the Manifesto, not the introductory material or "related documents" that are included in the book. Is this fair use?

Analysis

A fair use analysis is not necessary. The Communist Manifesto is in the public domain, and therefore Professor Meghani is free to use it without restriction. The 1999 compilation by Toews, however, is still under copyright, as is his introduction to the book. As long as Professor Meghani uses only the text of the Manifesto itself, she does not have to be concerned with potential copyright infringement.

Note: Professor Meghani is making too much work for herself by scanning the text. Instead, she could direct her students to Project Gutenberg, which contains public domain titles available for download in multiple formats. In this case, the Marxists Internet Archive would also be a good source.

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