Special thanks to Laura for compiling the below information.
DISCLAIMER: Copyright is a large field, and this guide only covers a small part. The primary focus of the guide is on use of copyrighted materials by University System of Georgia instructors operating under the University System of Georgia Copyright Policy. Contact the Georgia State University Office of Legal Affairs with questions in general or about specific situations.
Copyright is complicated, and that leads to a number of myths that are not accurate. The following are NOT TRUE:
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You need permission if your use does not fall under any of the listed exceptions. You can sometimes seek free permission; other cases require a license fee.
The exclusive rights of copyright holders are limited by a number of statutory exceptions. Particularly relevant to instruction are exceptions for:
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.
A checklist is a tool that allows you to perform a rigorous, fair use analysis, and each portion of the checklist below should be completed. Not all of the factors will be present in any given situation. Check only those factors that apply to your use. Where there are counter factors, usually one or the other applies. No single item or factor determines fair use, but several factors carry different weights, as indicated below. The final determination is based on weighing or balancing the four factors. You do not need to have all factors or all details pointing in favor of or against fair use.
Complete and retain a copy of the checklist for each “fair use” of a copyrighted work to establish a “reasonable and good faith” attempt at applying fair use should any dispute regarding such use arise.
It is incumbent on all instructors to follow the University System of Georgia Policy on the Use of Copyrighted Materials in Education and Research. The policy is focused on respecting the rights of copyright holders and on the use of copyrighted works in teaching, research, and service. It has a section on Fair Use, and explains rules for electronic reserves, which also apply to course management systems like iCollege.
You can make use of a work if:
If none of these apply, don’t use the work. If you would like help locating a work you can use that will meet your instructional needs, contact your subject librarian.
Use this box to search for licensed electronic journals:
The Digital Millennium Copyright Act (DCMA) 17 U.S.C. §1201 forbids circumvention of a technological measure effectively controlling access to a work protected under copyright.
Generally, it is a violation to go around any digital access controls if such access is unauthorized.
There are limited exceptions for a few uses, including critical educational uses. Click here for the current exemptions.
Think you are ready to use the TEACH Act? Check the University of Texas TEACH Act Checklist
When seeking free permission, first try to identify the copyright holder. This will probably be either the publisher or the work, or the author. Then, send a request where you:
To license the use of a work, the easiest method is to work through a collective rights agency. Alternatively, you can contact the copyright holder directly, usually the publisher.
