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Main Takeaways about Copyright

If nothing else, remember the following:

  • Assume content has copyright, unless you can prove otherwise.
  • Fair-use is not a "right," it is a legal defense.
  • Copyright is an ethical consideration as well as a legal one.

DISCLAIMER: The purpose of this guide is to provide the Jefferson College faculty with basic information about copyright law and fair use in an academic setting. This guide is not meant to offer or substitute for legal advice.

Copyright in Education

© Silvia Tolisano and Meryl Zeidenberg 2014

Steps for Determining Use of a Copyrighted Work

So you're dealing with a copyrighted work. Follow the steps below to determine what you'll need to do in order to use it. 

  1. Figure out if it is in the public domain. 
  2. If not, does the work have a Creative Commons license permitting certain uses?
  3. If not, are there legal exemptions to copyright law that would allow you to use the work?
  4. If not, consider the Fair Use exemption.
    • This is a legal exemption (Section 107), but it's the vaguest and riskiest!
    • See information on Fair Use below.
  5. If none of this works, seek permission from the copyright holder (and be prepared to possibly pay royalties).

Fair Use: Not Carte Blanche

What's Fair Use?

Fair Use permits some use of copyrighted materials for educational purposes such as criticism, scholarship, comment, teaching, news reporting, and research. Rather than listing exact limits of fair use, the fair use section of copyright law provides four standards for determination of fair use.

As part of the Copyright Act of 1976, Congress codified the Fair Use doctrine into Section 107 of the Act. It is now in the U.S. Code as Title 17, Chapter 1, Section 107, "Limitations on Exclusive Rights: Fair Use." Section 107 is what is legally known as an "exemption." The Fair Use exemption is an "exception to the rule," allowing certain uses of copyrighted materials, notwithstanding Section 106 and Section 106A . 

To determine if an educational use is covered under the Fair Use exemption, educators should consider four factors:

  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.”

These factors are broadly defined in U.S Copyright law to ensure that the idea of fair use is responsive to a wide variety of situations, both now and in the future.