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Indiana University Bloomington

Fair Use: Borrowed and Captured Media for Instruction

Faculty and instructors teaching with digital multimedia use materials they borrow and capture from many sources. These materials are typically distributed via course websites, closed course systems (such as Oncourse at IUB), online reserves, via podcast, or on hard media such as CD. When these materials are captured from copyrighted works, when the published status, the ownership of the original work is unknown, and/or permission for use is not granted, then instructors must consider whether the proposed use of these materials is a lawful fair use.

Some examples of digital multimedia used in instruction:

  • scanned image into Powerpoint or Keynote classroom presentation
  • audio clip (such as mp3) in an instructional podcast or website
  • video clip uploaded to Oncourse resources
  • graphs or charts copied from the web and placed in presentations or Oncourse resources for student review
  • texts scanned to PDF files for use in various types of online electronic reserves

To help analyze a proposed use of materials, apply the Fair Use Checklist, developed by Dr. Kenneth Crews, J.D., director of Columbia University's Libraries/Information Services Copyright Advisory Office (formerly director of the IUPUI Copyright Management Center). This balancing tool takes a step-by-step approach to evaluating the fair use of a copyrighted work. Which way does the balance tip - toward fair use, or away from fair use? Keep the filled out form as a record of the good-faith decision-making process of a proposed instructional use..

Factors to consider when evaluating the use of digitized multimedia in teaching

Several factors comprise the evaluation of the fair use of materials: the purpose, nature, amount, and the market effect of the proposed use. One has to analyze and evaluate each factor.

  • Purpose What is the purpose of the proposed use?
    In this discussion, the proposed use is for instruction at Indiana University. A new, or "transformative" use will be as part of criticism, review, a multimedia lecture presentation or interactive course site developed for a specific class. Non-transformative uses are also permitted.
  • Nature What is the nature of the intended use?
    Is the work unpublished, out-of-print, or otherwise not readily available? Fiction or non-fiction? Is the work from a CD included with a textbook that is for the education market?
  • Amount How much of the entire work will be used?
    No specific amount has been defined. The amount may be a quantitative measure or it may be a qualitative evaluation of the significance of the amount choses.
  • Market Effect How will this proposed use modify the value of the market for the copyrighted work?
    Consider whether or not the propsed use affects the sale of or demand for the original product. Should students buy the original, rather than have the instructor copy and provide it online? Was the original product intended for sale as a text supplement or classroom resource?

In addition, instructors should consider access to the digitized material:

  • How long will the file be available?
    Will online materials be posted until the next quiz or exam? Will materials be posted till the end of the semester? Will the digitized materials be posted in a student or course portfolio for an indefinite period of time?
  • Is the location of the materials restricted to students enrolled in the class?
    Will the public be able to access the digitized materials?

Copyright law of the United States, Section 107, provides for the lawful - fair - use of copyrighted materials. An instructor intending to use digitized materials for instruction should evaluate whether the proposed project favors fair use or opposes fair use.

The TEACH Act (Technology, Education and Copyright Harmonization Act) of 2002, further provides for the lawful use of media in distance education. Under the TEACH Act, accredited, nonprofit educational institutions may transmit performances and displays of copyrighted works as part of a course, provided certain conditions are met.

Balance

Any analysis of an intended use will probably be mixed, both favoring and opposing the fair use. Instructors should be reasonable and conservative in evaluating the factors of fair use. After all factors have been addressed, consider whether the checklist favors or opposes the use of the material under consideration. Which way does the balance tip - toward fair use, or away from fair use? Keep the filled out Fair Use Checklist as a record of the good-faith decision-making process of a proposed instructional use.

Fair to Share

Creative Commons - Share and Share Alike

Some materials are available for use without detailed analysis. Copyright holders grant some or all of their rights to the public while retaining others through Creative Commons licenses. Creative Commons licensing and contract arrangements include dedication to the public domain and open content licensing terms. The intent is to provide for the sharing of information.

Public Domain Works

Works in the public domain are not owned by anyone other than the public and are not protected by intellectual property laws. These works are free to be used.

Library of Congress

Many Library of Congress digital collections materials are available for use. The LOC includes an extensive explanation in Q&A format, with examples, of fair use of LOC materials.

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