Exemptions/Exceptions
to Copyright

Copyright Exemptions
& Exceptions

Fair Use

Exemptions to Copyright: Fair Use

The concept “fair use” in U.S. Code Title 17, Section 107 permits certain uses of copyright works without needing permission from the copyright holder.

Section 107 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 “Factors”

  1. Purpose and Character of the Use
    1. Non-profit v. for-profit
  2. Nature of the Work
    1. Factual v. creative
    2. Published v. unpublished
  3. Amount & Substantiality of the Work
    1. Small v. large portion
    2. Is it the “heart” of the work? 
  4. Effect of the Use
    1. Little effect on market value v. large impact on market value  

How Do I know if it is Fair Use?

No single factor determines whether something is fair use. All four factors must be considered in determining whether or not a use is fair. It is important to be able to explain your analysis of these factors if your use is later challenged. 

Tools for Considering Fair Use?

TEACH Act

Exemptions to Copyright: The TEACH Act

The Technology, Education & Copyright Harmonization Act (TEACH) of 2002 is a copyright exemption created specifically to benefit distance education and teaching. Even if a class is taught face-to-face, anything provided through a Learning Management System, such as Blackboard or Moodle, could fall under the TEACH Act. The TEACH Act exemptions are in addition to the exemption under Fair Use. 

Rights Under the TEACH Act

  • Transmitting performances of all of a non-dramatic literary or musical work: Non-dramatic literary works as defined in the Act exclude audiovisual works; thus, examples of permitted performances in this category in which entire works may be displayed and performed might include poetry or short story reading. Non-dramatic musical works would include all music other than opera, music videos (because they are audiovisual), and musicals.

  • Transmitting reasonable and limited portions of any other performance: This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.

  • Transmitting displays of any work in amounts comparable to typical face-to-face displays: This category would include still images of all kinds

Exclusions

Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually.

This last exclusion results from the definition of “mediated instructional activities,” a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. In other words, the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.

Conditions

  • The performance or display must be:
    • A regular part of systematic mediated instructional activity
    • Made by, at the direction of, or under the supervision of the instructor
    • Directly related and of material assistance to the teaching content, and
    • For and technologically limited to students enrolled in the class
  • The institution must:
    • Have policies, provide information about, and give notice that the materials used may be protected by copyright
    • Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them, and
    • Not interfere with technological measures taken by copyright owners that prevent retention and distribution

Authority to Make Copies

Finally, a new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in a digital environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:

  • Such copies are retained only by the institution and used only for the activities authorized by Section 110, and

  • For digitizing analog works, no digital version of the work is available free from technological protections that would prevent the uses authorized in Section 110

Because of the many limitations, Section 110(2) won’t go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don’t be discouraged by Section 110(2)’s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute.

Adapted from the University of Texas Libraries’ Copyright Crash Course guide

Tools for Considering the TEACH Act

Other Exemptions & Relevant Statutes

The Digital Millennium Copyright Act

Other Options?

Can you use a different work?