The scenarios below are intended to help faculty and students evaluate fair use. These scenarios are illustrative, not exhaustive.
The examples deal with situations involving:
SCENARIO 1: A professor copies one article from a periodical for distribution to the class for an in-class discussion/activity.
FAIR USE? Probably. Distribution of multiple copies for classroom use is generally considered fair use when the amount of the overall work being used is decidedly small (e.g., a single article out of a magazine or journal), especially in situations where there would be insufficient time to get the proper permissions.
SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.
FAIR USE? No. If access on the professor's website is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. Limiting access (e.g., to students currently enrolled in a course) would move this towards fair use.
SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.
FAIR USE? Probably not, if the works being used are still in copyright. Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration.
SCENARIO 5: A professor wishes to use a textbook he considers to be too expensive. He makes copies of some chapters of the book for the class.
FAIR USE? No. Although the use is educational, the professor is using a large portion of the work, and by providing copies to his students, he has affected the market. This clearly interferes with the right of the copyright owner to control the copying and distribution of the copyrighted work. The professor should place a copy of the book on reserve or require the students to purchase the book.
SCENARIO 6: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.
FAIR USE? No. This conduct still interferes with the rights of the copyright owner. The professor may place any legally-obtained copies of the textbook, but not copies, on reserve.
SCENARIO 7: A teacher copies a Shakespearian play from a copyrighted anthology.
FAIR USE? Yes (well, technically, N/A). Since the play is in the public domain and not subject to copyright protection, no permission is needed to copy the text of the play. However, if it were a critical anthology, any new or original material (e.g., the introduction, marginal or interpretive notes, etc.) would be subject to copyright and could not be copied without permission.
SCENARIO 8: A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice.
SCENARIO 9: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.
FAIR USE? Yes, almost certainly. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference and is not systematically copying the entire run of a publication (i.e., the professor can't be copying all or most of a circulated journal to which her department subscribes each time an issue comes across her desk).
SCENARIO 10: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.
FAIR USE? Yes, almost certainly. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.
SCENERIO 11: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the internet?
FAIR USE? If the professor placed the book on reserve in the library the answer is a bit murkier since it is no longer strictly personal use, but because the distribution of the copy would be limited the use may well still be considered a fair use. However, if the professor placed the book on the Web, then the use is pretty clearly not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book.
SCENARIO 12: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.
FAIR USE? Yes, almost certainly, so long as the copy being shown is a lawfully made/obtained copy. Technically, this is allowed under Section 110(1) of the copyright law (where displaying copyrighted works in the course of face-to-face teaching is granted as an exemption) rather than fair use (section 106), but the result is the same. Professors are able to perform or display copyrighted works in the course of face-to-face teaching activities at nonprofit educational institutions.
SCENARIO 13: A teacher makes a copy of the videotape described in SCENARIO 12 for a colleague to show in her class at the same time.
FAIR USE? No. The teacher may lend her personal copy of the videotape to a colleague for this purpose.
SCENARIO 14: A professor wishes to raise funds for a scholarship. She rents a videocassette of a motion picture on which the copyright has expired and charges admission fees.
FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain.
SCENARIO 15: The facts are the same as those in SCENARIO 14 except that the movie is protected by copyright.
FAIR USE? No, because it infringes the copyright owner's right to market the work.
SCENARIO 16: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.
FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.
What if the presentation incorporating the photographs discussed in SCENARIO 16 is broadcast to a distant classroom?
FAIR USE? Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.
What if the presentation discussed in SCENARIO 16 is broadcast to students at their homes or offices?
FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.
What if the teacher's or student's presentation explained in SCENARIO 16 is videotaped?
FAIR USE? Yes. This use would be considered fair use, if the videotape is used for educational purposes such as student review or if the videotape is for instruction.
What if the SCENARIO 16 presentation incorporating the photographs is videotaped and rebroadcast? Is this a fair use?
FAIR USE? Yes. The use of the photographs is fair use as long as the presentation is videotaped and rebroadcast only for instruction.
What if the SCENARIO 16 presentation is included in an electronic presentation such as Microsoft's Power Point?
FAIR USE? Yes. This should be considered fair use as long as the electronic presentation is for educational or instructional use.
What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 16?
FAIR USE? Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.
SCENARIO 17: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.Can the music be included in the teacher's or student's initial presentation?
FAIR USE? Yes. This is fair use if instruction is occurring.
Same facts as SCENARIO 17. The presentation is broadcast to a distant classroom using two-way interactive video (GSAMS).
FAIR USE? Yes. The use of interactive video for educational instruction is considered a fair use.
What if the teacher's or student's presentation described in SCENARIO 17 is videotaped?
FAIR USE? Yes. This is fair use if instruction is occurring.
What if the SCENARIO 17 presentation is videotaped and rebroadcast?
FAIR USE? The answer is not clear. If instruction is occurring and there are no admission charges to the rebroadcast, the presumption is that it may be fair use. Tuition and course fees do not constitute admission fees.
What if the SCENARIO 17 presentation is included in an electronic presentation (excluding the Internet)?
FAIR USE? Yes. This is fair use if instruction is occurring.
SCENARIO 18: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester.
FAIR USE? Yes, as long as the use of the presentation continues to be for instruction.
The opera classroom presentation (SCENARIO 18) or the presentation containing background music (SCENARIO 17) is placed on the Internet?
FAIR USE? Yes, so long as access is restricted, e.g., by use of a password or PIN or other means.
SCENARIO 19: Institution A creates a telecourse. The course contains copyrighted text, video, audio, and photographs relevant to the class. If Institution A did not obtain permission to use the copyrighted materials, can Institution A show the videotape of the telecourse to students who have signed up for a telecourse at Institution A?
FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.
Assume same facts as in SCENARIO 19. If Institution A did not obtain permission to use the copyrighted materials, can students at Institution B enroll and receive credit for the course at Institution B?
FAIR USE? Yes. Most experts believe that showing the videotape to students enrolled in the telecourse is a fair use.
Assume same facts as in SCENARIO 19. What if the telecourse is transmitted via the Internet?
FAIR USE? If the telecourse is broadcast and there is open access, the audience is no longer clearly defined. A rebroadcast over the Internet to a global audience is probably not a fair use. A restricted broadcast of the telecourse is a fair use.
SCENARIO 20: A faculty member at Institution C creates a searchable database of copyrighted materials. The database is used as a part of a distance learning course and is available on the institution's webserver. Students enrolled in the course access the course materials from home, work, and other areas that are not traditional classrooms. Access to the database is controlled and available only to students enrolled in the class. The faculty member did not obtain permission to use the copyrighted materials.
FAIR USE? Yes. So long as the materials are being accessed for educational instruction and access remains controlled.
SCENARIO 21: A student is taking a distance learning class in which the instructor has required that a particular assignment be created for unlimited distribution on the web. A student includes an audio segment of copyrighted music (video, news broadcast, non-dramatic literary work).
FAIR USE? No. Since the teacher specifically stated that the project is being created for distribution over the web, this is not a fair use of any of the listed copyrighted materials and permission should be obtained.
Same facts as SCENARIO 21, however, access to each student's Web page will be restricted to other students in the class.
FAIR USE? Yes.
SCENARIO 22: An instructor is teaching a class delivered on cable television or via two-way interactive video (GSAMS), and she uses a commercial videotape (either in its entirely or a portion), which is sold for instructional purposes, during a class to illustrate a concept covered in the discussion.
FAIR USE? Yes. She is using a commercial video for its intended purpose. Moreover, it is being used to illustrate a concept connected with the class discussion.
Same facts as SCENARIO 22, but the class is distributed over the Internet.
FAIR USE? This is a fair use only if access over the Internet is restricted.
Same facts as SCENARIO 22, but the videotape is not "educational" in orientation.
FAIR USE? Distribution over two-way interactive video or cable television controlled by the institution would be fair use, as would restricted distribution over the Internet. Unrestricted distribution over the Internet is not a fair use.
SCENARIO 23: A faculty member records a segment from a television program. The segment will be shown in a GSAMS class the following day. The remote sites will record the class in the event of technical difficulties.
FAIR USE? Yes.
Assume there are technical difficulties in SCENARIO 23 and the remote sites replay the tape containing the program segment.
FAIR USE? Yes. The use is for instructional purposes.
SCENARIO 24: Institution E records a two-way interactive video (GSAMS) class that contains copyrighted works. The tapes are kept for the entire quarter to serve as review for students who may have missed a class or as backup in the event of technical difficulties. At the end of the term, the tapes are erased.
FAIR USE? Yes.
What if the professor who conducted the class in SCENARIO 24 decides to show the tape to her continuing education class (or to a community group)?
FAIR USE? Yes, showing the tapes to her continuing education class is fair use if she is using the material for educational purposes and no admission fee is charged. Showing the tape to a community group may or may not be a fair use. The fact that the user of the tapes is a professor does not make the showing of the tape to a community group an educational use. One would need to conduct a fair use analysis.
SCENARIO 25: Institution E records a two-way interactive video class that contains copyrighted text, video, audio, and photographs that are relevant to the class. Institution E rebroadcasts the videotape to a class at Institution F.
FAIR USE? Yes. It is fair use since instruction is occurring.
