Rights Guide for Faculty

U.S. law permits the use copyrighted materials freely in the classroom in certain circumstances.  The most relevant permissions include:

• Section 107 of the Copyright Code (Fair Use)
• Section 110 of the Copyright Code (in-class performance or display of copyrighted materials
• the TEACH Act (a revision of section 110 mostly to do with online classrooms)

There are other amendments and laws that permit copying and re-formatting materials for use by people with disabilities like blindness. The most notable of these is the Chafee Amendment. Please consult St. Olaf College's Disability and Access Staff for more information.

Many educators claim "fair use" when distributing or showing copyrighted materials to their students, claiming this is an "educational use."  In reality, what constitutes legal fair use is more complicated.

Fair use is situational. There is no one definition of "fair use." Instead, each and every claim of fair use is investigated on its own merits. For educators, this means there is no hard-and-fast checklist to determine whether a use is fair.

Fair use is determined by the interaction of four factors: purpose, nature, amount, and market.

• Purpose: why are you reproducing the copyrighted material?
  • Educational purposes is a valid reason, but on its own, it is not enough to make a use "fair."
• Nature: what kind of material are you reproducing and are you transforming it?
  • The more creative a work is, the more strongly the courts will protect it. A poem about cats will receive stronger protection than a research article about cats.
  • The courts also care if you transform the copyrighted work. Are you just sharing it as is, or are you adding commentary or analysis? The more work you put into framing and presenting or otherwise "transforming" the copyrighted material, the more likely your use will be considered fair.
• Amount: how much of the copyrighted work are you reproducing and is it the most significant portion of that work?
  • People used to say "10% or less is ok." This recommendation is not reliable. In general, reproduce only the minimum amount needed for your point.
  • The courts also care about the significance of the material reproduced. Even if you only show a short video clip, if that clip encapsulates the main point of the entire video, the use may not be considered fair.
• Market: how will your use of the material affect the copyright owner's ability to profit from their material?
  • If it is possible to license material, the courts will want you to license it, rather than claim fair use.
  • You should make a good faith effort to ensure copyrighted material is unavailable for licensing before you make a fair use claim.

Fair Use Checklists: If you anticipate sharing copyrighted materials with students, consider keeping a Fair Use Checklist for each item you intend to share. This lets you demonstrate that you have considered the legal implications of distributing the copyrighted materials and have attempted to determine that your use is fair.  Cornell University has an useful sample Fair Use Checklist.

Fair Use Index: If you would .like to see samples of actual fair use claims and how they were decided in court, please consult the U.S. Copyright Office Fair Use Index.

Section 110 of the U.S. Copyright Code gives permission for instructors or students to show or display copyrights materials in face-to-face, in-person teaching environments. You can, for example, act out scenes from a play or show a movie on DVD.

This permission assume that your copy of the material was legally acquired.

Please note that the licensing statements for subscription services (Netflix, Amazon Prime, etc.) generally do not given permission for in-class viewing scenarios. If you plan to show movies in class, please consult the library so that the librarians can arrange to purchase a DVD or to license the film from a streaming provider.

Section 110 does make some provisions for online classroom environments, but those permissions are better explained by the TEACH Act.

The TEACH Act (Technology, Education and Copyright Harmonization Act, 2002) gives educators permission to make copyright-protected materials available online to students for purposes of distance learning only. 

The TEACH Act does not apply to in-person classes, so it does not apply to most St. Olaf College courses.

Yale University has an excellent guide to the provisions of the TEACH Act.  The most important points are:

• Only legally acquired materials may be shared with students.
• Access to materials must be limited to current enrolled students only.
• The duration of dramatic and musical materials should be limited to the typical class period duration.
• Materials that are available for educational licensing (for example, library databases like Academic Video Online) should not be posted; instead, provide students links to them within the database)
• Material that is shared must be required material, not supplemental readings or activities.

Course packs occupy a gray area in the intersection of copyright, education, and fair use.

If you want your students to read several articles from library databases over the course of the semester, it may be tempting to just print them out as a physical course pack or post the PDFs directly to your course website. However, this method may not meet the four factors of fair use: while the purpose is educational, you are posting the entire article (amount), you are not providing commentary or analysis to transform the work (nature), and you are depriving the authors/publishers/distributors the ability to profit from multiple students accessing their material (market).

For these reasons, many library databases, such as JSTOR, explicitly prohibit the use of their materials in course packs. 

The best practice for course readings is:

• for digital items available from library databases, provide stable links to the material, rather than posting or distributing the material itself.
• for physical items from library collections, place the items on course reserve using Catalyst.
• for materials outside library resources, consult library staff for advice on licensing the material for course use.