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Copyright: Exceptions


Exceptions faculty and students can use

Title 17 of the U.S. Code contains the U.S. Copyright Law. Section 106 delineates the rights of copyright owners:

  • to reproduce (photocopy, right-click save as, download, burning CDs or DVDs, scanning books)
  • to make derivative works (remix, mashup, abridgement, etc.)
  • to distribute copies (passing out photocopies, posting something on the web or social media)
  • to perform (screening a movie to a group of people, using a musician's song as background to your YouTube video, playing songs publicly by "digital transmission")
  • to display (show a copy on a presentation slide, in movie clips, or in a YouTube video)

There are limitations, or exceptions, to these exclusive rights of copyright owners. Of these, three exceptions are applicable in an educational setting:

  1. Fair Use (17 U.S. Code § 107)
  2. Face-to-face teaching activities (17 U.S. Code § 110.1)
  3. TEACH Act of 2002 (17 U.S. Code § 110.2)

As a user of copyrighted materials, you choose only one of these exceptions to use at a time. In other words, if you are using the fair use exception, then you are not using the other two exceptions. If you are using the face-to-face teaching exception, then you are not claiming fair use.

#1 - Fair Use

FOR STUDENTS & FACULTY

Fair use is a legal exemption provided by U.S. copyright law, in order to limit the rights of copyright owners (listed above). Fair use is not a toggle but a spectrum. In other words, you can't simply say something is fair use because your use is educational. You must evaluate each copyrighted work you intend to use according to all four factors of 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;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

(Source: 17 U.S. Code § 107)

An educational use of a copyrighted work falls under factor #1, purpose and character. The factors are not weighed evenly in court, where the ultimate fair use determinations are made. Therefore, it is a myth that all educational uses are fair uses. If you are using a copyrighted work in your thesis, lecture slides, journal article, book, Digication ePortfolio, blog post, capstone project, YouTube video, etc., you need to conduct a fair use evaluation for your intended use OR seek permission for your intended use from the copyright owner.

#2 - Face-to-face teaching exemption

FOR FACULTY

Unlike the fair use exemption, which can be applied to various kinds of works and to various uses, the face-to-face teaching exemption applies only to the performance and display of works and only in the physical classroom. Often, using the face-to-face exemption is easier and less complicated than using the fair use exemption, which is more nuanced and requires more consideration. This exemption does not apply to textual readings but to the display of images or the performance of a video or sound recording: movies, documentaries, recordings of a poem, images in your slides:

...performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made...

(Source: 17 U.S. Code § 110.1)

#3 - TEACH Act (distance learning)

FOR FACULTY

Unlike the fair use exemption, which can be applied to various kinds of works and to various uses, the TEACH Act exemption applies only to the performance and display of works in distance learning scenarios, such as UBlearns course sites. The requirements are numerous and technical, which is why you may have already used this exemption without knowing it. Because there are so many requirements, institutions often subscribe to TEACH Act compliant products for faculty to use on learning management systems like UBlearns. Here are UB's TEACH Act compliant products for the performance and display of copyrighted films:

The TEACH Act section of the U.S. Code is much longer than the face-to-face teaching exemption (quoted in full above): 17 U.S. Code § 110.2.

The TEACH Act exemption covers performances and displays of copyrighted works beyond the films offered in Kanopy and Swank. For more information, explore the links below.