Fair Use and TEACH Act
The fair use exception exists to achieve a balance between copyright owners and the general public who may benefit from using copyrighted works without seeking permission.
A fair use is any copying of copyrighted material done for a limited and "transformative" purpose, such as to comment upon, criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, research, or parody of a copyrighted work.
In determining whether the use of a work in any particular case is a fair use, consider these factors in a fair use analysis:
- Is the use for a commercial or noncommercial purpose?
- What is the target audience?
- If the purpose is educational is the copied work to be accompanied by original commentary?
- Does the use of the work "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original?
- Is the copyrighted work informational or creative?
- Is the copyrighted work educational or entertainment?
- Is the copyrighted work published or unpublished?
- Did you use only the amount you needed to accomplish your purpose?
- Is the copied amount the "heart of the work"?
- Is the copied amount a substantial percentage of the whole work?
- Will the copying interfere with marketability of the original work?
- Are permissions available to purchase at a reasonable price?
- Is the use a "substitute" for purchasing the work?
If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the proposed use will not fit the fair use exception and may require permission from the copyright owner.
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TEACH allows the digital transmission of performances and displays of copyrighted works, without having to obtain prior permission from the copyright owner, as part of synchronous or asynchronous distance education applications.
Instructors who want to incorporate works into digital transmissions for instructional purposes applying TEACH should:
- Avoid use of commercial works that are sold or licensed for purposes of delivery of digital content for distance education purposes.
- Avoid use of pirated works, or works where you otherwise have reason to know the copy was not lawfully made.
- Generally, limit use of works to an amount and duration comparable to what would be displayed or performed in a physical classroom setting. In other words, TEACH does not authorize the digital transmission of textbooks or coursepacks to students.
- The faculty should interactively use the copyrighted work as part of a class assignment in the distance education course. It should not be an entertainment add-on or passive background/optional reading.
- Use tools provided by the university to limit access to the works to students enrolled in the course, to prevent downstream copying by those students, and to prevent the students from retaining the works for longer than a "class session."
- Notify the students that the works may be subject to copyright protection and that they may not violate the legal rights of the copyright holder.