Copyright and Fair Use as it Applies to
Education and Research at the Brown School
There are four elements to fair use. In the academic environment, it is very common to believe that as long as the purpose of use is for education or non-profit research that fair use applies. However, purpose is only the first of four factors. For fair use to apply, all four factors must be met. In education and research, it is almost always the 3rd and 4th factors that can cause a use to not be fair. The content provided below is in line with WUSTL Faculty Guidance for Copyrights. In brief, the four factors of Fair Use are…
1. Purpose 2. Nature of the work 3. Amount to be used 4. Market impact
- Purpose – since nearly everything we do at the Brown School is to educate or conduct non-profit research, most of our use satisfies the purpose fact
- Nature of the work itself – If the work is fact based, it probably meets the criteria of the nature of the work. Unpublished materials or materials that are creative, artistic, or fictional probably do not meet the nature factor.
- Amount to be used – A small portion is acceptable and small is usually defined as less than 10%. However, it is also important that the amount of work being used is not considered the heart of the work. For example, if you have a published case study and you want to share a compelling narrative within the case study, that could be considered the heart and using that would not be acceptable.
- Market impact of use – Is the way in which you are using and distributing the work circumventing purchasing the work? Be honest here. Are you doing this to save your students money so they don’t have to buy the work themselves? If the answer is yes, then chances are good that your use does not meet the 4th factor.
1 + 2 + 3 + 4 = Fair Use
Common Uses
= Acceptable Use X = Not Acceptable Use
- A book, article, or other work that is online…
Share a link to the resource
X Make a hard copy or digital copy of the resource and distribute, for example, by handing out the copies or posting it to a course management system
- Educational or Non-profit Research…
Borrow or purchase the work, quote a sustainable portion, and cite the work (sustainable is generally defined as less than 10% and not the heart)
Have the library set aside print copies or link to digital items via course reserves
Make a sustainable portion of the work available (sustainable is generally defined as less than 10% and not the heart of the work)
X Make a copy of the whole textbook, of the heart of the textbook, or more than 10% of the textbook and distribute that copy via a course management system, email, or by handing out print copies
Further Resources
Rights to Alternative Formats under Copyright Law
The Chafee Amendment, now Sec. 121 of the Copyright Act, permits schools, as authorized entities, to reproduce previously published, nondramatic literary material in alternative formats for students with disabilities.[11] The amendment removes a school’s need to first secure permission for reproduction and distribution from copyright owners, and in doing so levels the playing field for blind students who cannot effectively use materials readily available to their sighted peers in libraries and elsewhere on campus. Moreover, as held by the Supreme Court[12] and the U. S. Court of Appeals for the Second Circuit,[13] making an accessible copy of copyrighted material for a person with a print disability is a fair use, that is, a use that does not require the permission of the copyright owner and not requiring that the blind student purchase a copy of the book when that book is freely available to sighted students.
Self-Advocacy in Higher Education Toolkit: https://nfb.org/programs-services/advocacy/advocacy-resources/self-advocacy-higher-education-toolkit
Designed for "blind students seeking to better understand the higher education accommodation request process, mitigate access barriers on campus, and ultimately to success at your schools and in your chosen areas of study."
Thinking Through Fair Use tool: https://www.lib.umn.edu/services/copyright/use#fourfactors
Useful tool that starts from the place most educators and researchers start from – that it is fair merely because of the intended purpose but then takes them through the other three conditions of fair use.
ALA Fair Use Evaluator: https://librarycopyright.net/resources/fairuse/index.php
Full text of the Fair Use legal doctrine: https://www.copyright.gov/fair-use/more-info.html
WUSTL Faculty Guidance for Copyrights: https://wustl.edu/about/compliance-policies/intellectual-property-research-policies/faculty-guidance-copyrights/
Making multiple copies is not fair use if the faculty member...
1.routinely copies the same work in successive terms
2.copies works intended to be consumed in the classroom (such as workbooks or standardized tests),
3.makes copies in accordance with an institutional plan (rather than as a result of individual initiative), or
4.charges more than the cost of copying.
Circular 21 Reproduction of Copyrighted Works by Educators and Librarians: https://www.copyright.gov/circs/circ21.pdf
ARL Code Of Best Practices In Fair Use For Academic And Research Libraries: https://www.arl.org/code-of-best-practices-in-fair-use-for-academic-and-research-libraries/
Database of Copyright Court Cases: https://www.copyright.gov/fair-use/fair-index.html