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Copyright

Using Materials in the Classroom under Fair Use

In the course of teaching, you may want to use images, figures, excerpts of text, or other materials for which the copyright is held by someone else. Does that mean you can't use these materials?

Not necessarily. Your use of the material may fall under the Fair Use Doctrine. Section 107 of the U.S. Copyright law provides for the use of copyrighted materials under certain circumstances defined as “fair use.” There are four factors that must be considered when determining whether you are covered under fair use: 

  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. Is it more factual or more creative? 
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In recent years, courts have determined that the four factors should not be weighted equally in all cases, and a "checklist" method of determining fair use cannot accurately be applied across different cases and different types of use. This means that each time you wish to use material under the Fair Use Doctrine, you should conduct a four-factor analysis and document your rationale. Below are some resources that can help you walk through the process of conducting an analysis for fair use. 

The TEACH Act

*This section is reproduced with slight adaptation from the University of Texas Libraries' TEACH Act, Copyright Crash Course guide by Georgia Harper

Copyright law also provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.

The TEACH Act of 2002, expanded the scope of online educators' rights to perform and display works and to make copies integral to such performances and displays, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for online education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom. There are no limits and no permissions required. Under 110(2), however, even as revised and expanded by the TEACH Act, the same educator would have to pare down some of those materials to show them to online students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions".

This disparity, coupled with the considerable number of additional limits and conditions imposed by the statute, has lead some educators to conclude that it's more trouble than it's worth to rely on Section 110(2). This statute's complexity provides a new context within which to think about fair use: compared to the many conditions and limits contained in Section 110(2), the four factor fair use test seems simple and elegant. 

Fair use also remains important because the in-classroom activities (even if the classroom is virtual) that the TEACH Act authorizes are a small subset of the uses of online resources educators may wish to make. It only covers in-class performances and displays, not, for example, supplemental online reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use.

Section 110's role in the balance of interests has always been to permit educators to share works with their students and to show others' works in class. However, Section 110(2) significantly limits who may display and perform materials and under what circumstances, including how much they may use. The TEACH Act checklist, summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together with fair use, this statute will achieve Congress' goal of facilitating online education.

Performance rights

Sometimes a video or audio recording under copyright protection and owned by the University of Iowa Libraries can be shown in a group setting, while other times it cannot. Additionally, some videos owned by the Libraries were obtained with public performance rights which may allow them to be shown under certain circumstances. See the following guidelines:

  • Permission is not required for face-to-face classroom teaching involving only students registered for the class in question, where the copy of the video is lawfully made, and where the professor is present during the screening.
  • Permission is required for face-to-face classroom teaching where the audience includes people other than registered students, or where the other requirements noted above are not met.
  • Any screening of a video that takes place outside a classroom shown to a group of people, especially when advertised as an public event.
  • Check with your librarian or email lib-eresource@uiowa.edu to find out if the Libraries have obtained performance rights for a particular recording. 
  • To seek permission for performance rights, you may want to consult with UI's General Counsel for guidance. For films, permission can be sought through Swank Motion Pictures, and permissions for music can be sought through BMI