Copyright and Fair Use

Introduction

The Fair Use Doctrine protects the use of copyrighted works for socially beneficial activities such as teaching, learning, and scholarship. Courts consider four factors in deciding whether a use is Fair Use or an infringement:

1. Purpose of the Use (learning, commentary, criticism OR commercial);
2. Nature of the Publication (factual OR creative);
3. Amount and Substantiality of the Whole (small OR substantial);
4. Effect on the Market (has no effect OR replaces a sale).

Section 107 of U.S. Copyright law lists the four factors of Fair Use.

Fair Use Resources

• Code of Best Practices in Fair Use for Scholarly Research in Communication
• Code of Best Practices in Fair Use for Academic and Research Libraries
• Fair Use Evaluator
• Stanford University's Copyright & Fair Use Center
• U.S. Copyright Law: What you CAN do

TEACH Act

In response to the growing use of materials in digital formats in Distance Education, the 2002 Technology Education and Copyright Harmonization Act (TEACH) exempts educators in accredited non-profit educational institutions from asking permission when displaying copyrighted materials in digital format, subject to a number of conditions some of which are discussed below.  (i.e. the TEACH Act does not allow unlimited copying and redistribution of digital works, even if the use is educational.)

The TEACH Act applies to “mediated instructional activities”; that is, those activities that normally occur in a classroom.  It does not apply to course reserves (which are generally protected by Fair Use).  The transmitted materials should be integral to the course taught, and they should be used in the way they would have been displayed or performed in a physical classroom. Materials that can be used under the TEACH Act include all electronic formats of all works that would typically be taught in a physical classroom, such as non-dramatic literary works (including articles and book chapters) and audiovisual works (including videos), but only limited portions of dramatic literary works (plays, operas). However, it does NOT apply to works that are solely produced for distance education, or required readings, such as textbooks, course packs and consumable workbooks.

Unlike the Fair Use Doctrine, the educational institution has to comply with certain technical requirements when using the TEACH Act. It has to limit access to the transmitted materials so that only registered students have access. At the same time the institution should prevent unauthorized copying of these materials, and refrain from interfering with technological barriers used by the copyright owner. Materials should be saved electronically only as long as they are used in the digital class.

The TEACH Act and some additional resources

It is easy to confuse plagiarism with copyright violation, but they are not the same.  The UC Irvine Office of Academic Integrity and Student Conduct defines plagiarism as follows:

Plagiarism is intellectual theft. It means use of the intellectual creations of another without proper attribution. Plagiarism may take two main forms, which are clearly related:

1.    To steal or pass off as one's own the ideas or words, images, or other creative works of another.

2.    To use a creative production without crediting the source, even if only minimal information is available to identify it for citation.

Credit must be given for every direct quotation, for paraphrasing or summarizing a work (in whole, or in part, in one's own words), and for information which is not common knowledge.

UCI Office of Academic Integrity and Student Conduct (https://aisc.uci.edu/students/academic-integrity/definitions.php)

While plagiarism is morally reprehensible, it is not illegal.  Copyright violation, on the other hand, is a crime that can be prosecuted under Federal law.

Using good citation practices helps to avoid plagiarism. The Citations library guide contains resources on how to manage bibliographic information.

Copyright law is, for good or for ill, an increasing concern for academics in their work. One area receiving particular attention is the copyright status of data and data representations. The Copyright Act and relevant case law are clear on copyright protection for data in the United States: there is none. This excellent site on the Copyrightability of Charts, Tables, and Graphs from the University of Michigan explains why.