(Based on materials developed by the University of Minnesota University Libraries: https://www.lib.umn.edu/copyright)
General Principles of Fair Use in Education
In seeking to balance the educational needs and research interests of the university community with the interests of copyright owners, the University Libraries stands firmly behind the statutory concept of fair use provided in the U. S. Copyright Act. (17 U.S.C. Section 107).
The library seeks to assure that its user communities understand their responsibilities in complying with copyright law. Appropriate application of fair use in education is dependent on a fundamental knowledge of copyright law. Library users can make good faith fair use judgments only when they understand the statute, and where and when it can be appropriately applied.
To foster knowledgeable and informed fair use assertion the University Libraries adheres to the following general principles for the appropriate application of fair use. These principles illuminate fair use standards and will continue to guide future development of copyright policies within the library.
Principle 1: Fair use is both technology and medium neutral.
The fair use doctrine applies to uses in digital environments and to any copyrighted work without regard to the medium of the original work. It is important to note, however, that fair use will not apply to licensed resources, unless the terms of controlling agreements specifically defer to Section 107 — statutory fair use.
Principle 2: Appropriate fair use assertions depend on a case-by-case examination of the facts surrounding each case, and the four factors identified in Section 107 of the U. S. Copyright Act. To determine whether any particular use is a fair use, consider these factors:
- The purpose or character of the use; including whether such use is of a commercial nature or for nonprofit educational purposes.
- The nature of the copyrighted work used.
- The amount and substantiality of the work being used.
- The effect of the use on markets for or the value of the original work.
In general, uses for educational purposes at nonprofit institutions weigh in favor of fair use. Considering factor number two, fair use favors the use of works of a factual nature more than the use of creative, artistic works. With respect to amount used, using less than an entire work, and not that portion which might be viewed as the essence of the work, will weigh more in favor of fair use. As for market effect, uses that have no impact on the market value for the original work weigh in favor of fair use.
Principle 3: Responsible and good faith judgments concerning fair use are the result of a knowledgeable and informed teaching community.
University faculty and staff are expected to know and comply with the laws and regulations related to their duties. Faculty and staff who use copyrighted materials are responsible for copyright compliance in their work. The University Libraries offers information and training programs that provide copyright awareness and fair use decision support for faculty and staff.
The University of Tennessee Office of the Vice President, General Counsel and Secretary of the Board of Trustees Statement on University Employee Protections Against Liability (http://bot.tennessee.edu/counsel-liability.html) describes the conditions under which the University will defend and indemnify employees. Subject to that policy, University employees have immunity from liability for acts or omissions within the scope of their employment, unless the acts or omissions are willful, malicious, criminal, or done for personal gain.
Types of state law claims to which this immunity applies include claims for personal injury (including professional malpractice), property loss or damage, and libel and slander (defamation).
Principle 4: There are varied interests in and varied opinions about fair use.
The general concept of fair use, embodied in Section 107, continues to evolve along with copyright law. Familiarity with court decisions concerned with fair use is essential in the rapidly changing technology environment. There is no” bright line” rule for determining fair use, and opinion among reasonable individuals will vary. Exposure to the variety of scholarly opinions about fair use can lead to a broader overall understanding of fair use.
Principle 5: Fair use, as defined in the statute, is determined on a case-by-case basis, with a careful four-factor analysis. While guidelines can inform this analysis, fair use is not limited to the safe harbors they outline.
Attempts to formulate guidelines for fair use in education have not succeeded in generating broad consensus agreement among educators and members of the publishing industry as to what sorts of uses necessarily constitute fair uses. Often guidelines impose restrictions and conditions that are not expressed in Section 107′s language. Though not necessarily determinative, as part of the legislative history surrounding the Copyright Act of 1976, the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (H.R. 2223) is informative.
1 Statement of Policy on Patents, Copyrights, and Other Intellectual Property, Adopted by The University of Tennessee Board of Trustees October 19, 1984; amended June 19, 2003, http://utrf.tennessee.edu/PDF/IP_Policy.PDF.
University of Tennessee Libraries
Principles of Fair Use of Copyrighted Works
The University Libraries supports the University of Tennessee’s multifaceted mission encompassing teaching, research, and service through collections, services, and creative applications of information technologies. The library is committed to compliance with intellectual property law and the preservation of the rights of copyright owners and users of copyrighted materials. The library provides information and education services for the university community to better understand and address intellectual property questions. Such information includes rights and responsibilities under the fair use provision of the Copyright Act (17 U.S.C. Section 107) and their application to the use of copyrighted works. Accordingly, the University Libraries shall:
1. Promote the adoption of campus policies, standards, and procedures that assert, rather than reduce, limit, or restrict fair use.
2. Serve as a knowledgeable copyright information resource for the university community, in collaboration with other campus units.
3. Educate faculty, staff, and students about their fair-use rights and responsibilities and the good faith application of the four factors for determining those rights and responsibilities set forth in 17 U.S.C. Section 107.
4. Whenever possible, enter only into agreements that allow access to and use of information that fully supports the university’s mission, without restrictions on fair use.
5. Advocate within the university community and beyond for the preservation of fair use and the availability of licensing terms that strengthen rather than inhibit teaching, learning, scholarship, and research.
These principles were reviewed and approved by the University Libraries’ Management Group on 9 May 2007.
They have been sent to the University of Tennessee’s Office of the Vice President, General Counsel and Secretary of the Board of Trustees for review.