"Academic
freedom at Regent University is framed by the context of the university's
mission statement and statement of faith and is consistent with the standards
and norms stated in the academic freedom policy. The faculty member
is free to pursue truth within his or her discipline by research, discussion,
and other forms of inquiry. This freedom carries a responsibility
to truth, to scholarly integrity, and to one's students."
(Regent Faculty and Academic Policy Handbook, 1:02:01)
Notwithstanding
the provisions of sections 106 and 106A, the fair use of copyrighted work,
including such use by reproduction in copies or phonorecords or by any
other means specified in that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright.
(Title 17, Section 107, US Code)
FAIR
USE
WHAT
IS FAIR USE? | WHAT DETERMINES
FAIR USE? | WHAT DO THESE FACTORS MEAN? | WHAT
ABOUT EDUCATIONAL COPYING?
What is
fair use?
Fair use is a limitation
of copyright under Section 107 of the Copyright
Law that allows reproduction of copyrighted works for
the purpose of criticism, comment, news reporting, teaching,
scholarship, or research.
What determines fair
use?
In determining whether
the use made of a work in any particular case is fair use the
factors to be considered shall include--
(1) the purpose and
character of 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;
(4) the effect of the
use upon the potential market for or value of the copyrighted
work.
The fact that a work
is unpublished shall not by itself bar a finding of fair use
if such finding is made upon consideration of all the above factors.
(Sec. 107)
What do these factors mean?
The factors contributing
to fair use must be considered individually and then weighed
against one another to determine fair use. All four factors
must be taken into consideration. There are no concrete
guidelines and the courts may look at each case differently.
They may consider other factors such as the availability of the
material and/or the owner. When deciding whether use of material
qualifies for fair use, consider the following:
(1) the purpose
and character of use, including whether such use is of a commercial
nature or is for nonprofit educational purposes
While Congress favors
use for nonprofit educational purposes, this use alone will not
constitute fair use. Commercial use of a work weighs against
fair use. If the purpose of copying is for criticism,
news reporting, comment, teaching, research or scholarship, this
weighs in favor of fair use. If access is limited to classroom
or password protected, it weighs toward fair use.
(2) the nature of the
copyrighted work
If a work is factual
or nonfiction, it weighs more towards fair use. Works of
fiction or works that are highly creative will carry less weight. Published
works weigh more towards fair use than unpublished works.
(3) the amount and
substantiality of the portion used in relation to the copyrighted
work as a whole
The law does not give
specific guidelines. The less that is copied the heavier
will be the weight given to fair use.
(4) the effect of the
use upon the potential market for or value of the copyrighted
work
If copying the work
has an adverse effect on the market, this will weigh against
fair use. If an original work could have been purchased, this
will weigh against fair use.
What about educational copying?
The following guidelines
from Circular 21: Reproduction
of Copyrighted Works by Educators and Librarians are generally
accepted for classroom copying in not-for-profit educational
institutions with respect to books and periodicals. These
guidelines state the minimum and not the maximum standards of
educational fair use.
I. Single
Copying for Teachers
A single copy may be made of any of the following by or for
a teacher at his or her individual request for his or her scholarly
research or use in teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not from a collective
work;
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical,
or newspaper.
II. Multiple
Copies for Classroom Use
Multiple copies (not to exceed in any event more than one
copy per pupil in a course) may be made by or for the teacher giving
the course for classroom use or discussion; provided that:
A. The copying meets the tests of brevity and spontaneity as defined below;
and,
B. Meets the cumulative effect test as defined below; and,
C. Each copy includes a notice of copyright
Definitons
Brevity
(i)Poetry: (a) A complete poem if less than 250 words and if printed on
not more that two pages or, (b) from a longer poem, an excerpt of not more
than 250 words.
(ii)Prose: (a) Either a complete article, story or essay of less than 2,500
words, or (b) an excerpt from any prose work of not more than 1,000 words or
10% of the work, whichever is less, but in any event a minimum of 500 words.
(iii)Illustration: One chart, graph, diagram, drawing, cartoon, or picture
per book or per periodical issue.
(iv) "Special" works: Certain works in poetry, prose or in "poetic
prose" which often combine language with illustrations and which are intended
sometimes for children and at other times for a more general audience fall
short of 2,500 words in their entirety. Paragraph "ii" above
notwithstanding such "special works" may not be reproduced in their
entirety; however, an excerpt comprising not more than 10% of the words found
in the text thereof, may be reproduced.
Spontaneity
(i) The copying is at the instance and inspiration of the
individual teacher, and
(ii) The inspiration and decision to use the work and the moment of its use
for maximum teaching effectiveness are so close in time that it would be unreasonable
to expect a timely reply to a request for permission.
Cumulative Effect
(i) the copying of the material is for only one course in
the school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two excerpts may
be copied from the same author, nor more than three from the same collective
work or periodical volume during one class term.
(iii) There shall be not more than nine instances of such multiple copying
for one course during one class term.
[The limitations stated in "i" and "iii" above shall not
apply to current news periodicals and newspapers and current news sections
of other periodicals.]
III. Prohibitions
as to I and II Above
Notwithstanding any of the above, the following shall
be prohibited:
(A) Copying shall not be used to create or to replace or substitute for anthologies,
compilations or collective works. Such replacement or substitution may
occur whether copies of various works or excerpts therefrom are accumulated
or reproduced and used separately.
(B) There shall be no copying of or from works intended to be "consumable" in
the course of study or of teaching. These include workbooks, exercises,
standardized tests and test booklets and answer sheets and like consumable
material.
(C) Copying shall not:
(a) substitute for the purchase of books, publishers' reprints or periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by the same teacher from term
to term.
(D) No charge shall be made to the student beyond the actual cost of the photocopying.
The following guidelines
state the minimum and not the maximum standards of fair use with
respect to the educational uses of music.
A. Permissible
Uses
1. Emergency copying to replace purchased copies which
for any reason are not available for an imminent performance provided
purchased replacement copies shall be subtituted in due course.
2. For academic purposes other than performance, single or multiple copies
of excerpts of works may be made, provided that the excerpts do not comprise
a part of the whole which would constitute a performable unit such as a section,
movement or aria, but in no case more than 10 percent of the whole work. The
number of copies shall not exceed one copy per pupil.
3. Printed copies which have been purchased may be edited or simplfied provided
that the fundamental character of the work is not distorted or the lyrics,
if any, altered or lyrics added if none exist.
4. A single copy of recordings of performances by students may be made for
evaluation or rehearsal purposes and may be retained by the educational institution
or individual teacher.
5. A single copy of a sound recording (such as a tape, disc or cassette) of
copyrighted music may be made from sound recordings owned by an educational
institution or an individual teacher for the purpose of constructing aural
exercises or examinations and may be retained by the educational institution
or individual teacher. (This pertains only to the copyright of the music
itself and not to any copyright which may exist in the sound recording.)
B. Prohibitions
1. Copying to create or replace or substitute for
anthologies, compilations or collective works.
2. Copying of or from works intended to be "consumable" in the course
of study or of teaching such as workbooks, exercises, standardized tests and
answer sheets and like materials.
3. Copying for the purpose of performance, except as in A (1) above.
4. Copying for the purpose of substituting for the purchase of music, except
in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice which appears on the printed
copy.
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This page created
by Regent University Library; updated 2002
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