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Using Copyrighted Materials in Instruction: Fair Use

Covers copyright in general, exceptions, permissions, licensing, ereserves, course management systems

Fair Use Basics

As an instructor at GSU, whenever you request that the E-Reserve or iCollege/D2L systems include a copy of a portion of a copyrighted work without permission from the rightsholder, you will be expected to do a thoughtful fair use analysis, and affirm that you found the use you are requesting to be a fair use. 

By applying some basics of doing a rigorous fair use analysis, you not only will be showing respect for the interests of other authors, but you will also be helping comply with the law and preserve our ability to offer reserve services and provide copyrighted instructional content online.  Moreover, you will also be helping the university community maintain a responsible standard of fair use that can support our teaching.

Copyright law provides the creators of original works of authorship with a set of limited exclusive rights, including the right to copy, distribute, and perform their works. The law balances the private interests of copyright owners with the public interest and is intended, in the words of the Constitution, “to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, the law provides limited exceptions to the copyright owner’s exclusive rights to the original work. One such exception is the right to make a “fair use” of a copyrighted work.

The fair use analysis is a means to determine whether reliance on the fair use exception is justified, or in other words, whether an unlicensed use of a copyrighted work is legally permissible.

Fair use is an important aspect of the copyright law of the United States, and it allows you to make limited uses of copyrighted works without permission from the owner or other rightsholder.  When you scan and share readings in a course, for example, you are often exercising fair use.  However, not all such educational uses are within fair use.

A determination of whether your use is a fair use depends on whether the four factors in the statute weigh in favor of or against fair use.  The four fair use factors are:

Factor 1:  The purpose and character of the use.
Factor 2:  The nature of the copyrighted work.
Factor 3:  The amount and substantiality of the portion used.
Factor 4:  The effect of the use on the potential market for or value of the original.

A critical ruling was handed down by the Eleventh Circuit Court of Appeals in Cambridge University Press v. Albert, 906 F.3d 1290 (11th Cir. 2018) and the District Court in Cambridge University Press v. Becker, No. 08-CV-1425-ODE (N.D. Ga. Sept. 30, 2020). These cases provide specific guidance regarding the nature and amounts of excerpts from books and other works that are likely to be fair use in the non-profit educational context.

The Georgia State Office of Legal Affairs provides a checklist to help you do a fair use analysis.

The Fair Use Exception