- Is my use fair use?
Only you can decide. The Fair Use Evaluator can help.
- Is the material I want to use protected by copyright?
For works published in the U.S., the Digital Copyright Slider can help you find out.
Copyright and Fair Use at Marlboro College
At Marlboro College, faculty are responsible for ensuring that their uses of instructional materials are consistent with United States copyright laws and guidelines.
The library works with faculty to arrange for access to materials from our collections, whether physical (traditional reserves) or online (via links in Moodle or other online course sites).
For materials to which the library does not provide access via ownership or licensing, librarians can work with faculty to clarify options for access and/or locate copyright holders. The responsibility for securing rights and ensuring appropriate use, however, remains with the instructor.
Traditional (Book/Video) Reserves
Books and videos owned by the library may be placed on reserve at the library. Personal copies of books and lawfully obtained videos owned by instructors will also be processed and placed on reserve upon request.
Print Article Reserves
With the widespread adoption of Moodle by faculty, the library has discontinued offering a print article reserve service. We will, as a convenience to faculty who wish to share printed materials with students, provide a dropbox at the Library Service Desk where faculty can leave, and students can pick up and return, printed materials such as journal articles. Faculty are responsible for complying with relevant copyright laws and guidelines. The library does not mediate the circulation of these materials, nor keep a list of them.
Posting Course Materials Online
(Many thanks to the Copyright Advisory Office of Columbia University [Kenneth D. Crews, director] for permission to reuse and adapt the content in this section from their website, which is well worth perusing: http://www.copyright.columbia.edu.)
Using a course website or a college-supported course management system (CMS), such as Moodle, to make instructional materials available to students can raise many copyright issues. These systems can be used to provide a wide range of materials, from articles and book chapters to sound recordings and visual images. However, such materials may be posted and shared only in a manner consistent with copyright law, which gives legal protection to nearly all text, images, audiovisual recordings, and other materials, whether available on the Internet or in any other medium.
Instructional materials may be posted to a CMS or a course website under any of the following circumstances, as detailed more fully below.
- The instructor is the copyright owner of the material, or
- The material is made available by linking* rather than copying, or
- The copyright owner of the material grants permission, or
- The material is in the public domain, or
- The use is within “fair use” under the law, or
- The use is within another statutory exception.
*unless prohibited as terms of a license
Permissible Uses on CMS and Websites
Ownership of Copyrighted Material
Naturally, you may post materials to which you hold the legal rights. In general, you are the copyright owner of scholarly and instructional materials that you created independently, and only then if you have not assigned the copyright to another party. Faculty authors of journal articles and other materials frequently assign their copyrights to publishers under the terms of a publication agreement. Read these contracts carefully to determine who may be the copyright owner of your own work.
Linking to Databases and the Web
Simply linking to materials that are already lawfully available on the Internet or in databases is often feasible, efficient, and legally sound, without raising significant copyright questions. The library provides access to numerous full-text databases, and librarians often have negotiated licenses that permit linking, printing, and other necessary uses in the educational setting. Librarians can help you locate materials and make links that you can post in Moodle. Note: some publishers prohibit linking directly to their materials in online courseware. If you are unsure about a given use, ask a librarian.
Permission to Post Materials
Permission from the copyright owner is an important option for posting materials to CMS or a website. Instructors are ordinarily responsible for securing any needed permission. Permission can come in many forms.
- A quick and easy, but fee-based (and sometimes costly), way to secure permissions is to go through the Copyright Clearance Center (http://www.copyright.com/), which is authorized to license the use of works by many U.S.-based publishers.
- If you plan ahead, you can contact rights holders directly to request permission to reuse materials; fees may be less than those charged by the Copyright Clearance Center (or even non-existent). Librarians can help you track down the copyright holder of a given work.
- Works that are made Open Access or Open Source by the rights holder are at least available for researchers, students, and anyone else to access and read without further permission. Many works are made available on the Internet and elsewhere with a statement of permitted use or with a Creative Commons license. These possibilities are effectively an advance permission from the copyright owner, often permitting non-commercial uses of the works. Read the language carefully, and if it covers your needs, you are free to proceed with the use.
Works in the Public Domain
Copyrights in many early works have expired, leaving them without restrictions on copying, uploading, and many other uses. Most notably, works published in the U.S. before 1923 are in the public domain. Copyrights to more recent works may also have expired, but the law requires individual scrutiny of each work. In addition, broad categories of works, such as works originally created by the U.S. federal government, have no copyright protection. The American Library Association’s (ALA) Digital Copyright Slider can help you determine the copyright status of a work published in the U.S.
Fair use is a legal doctrine that allows the public to make limited uses of copyrighted works without permission. Fair use plays a key role in the online world, but it may not be what you expect. Simple, clean, concise rules do not exist in the law of fair use. Do not assume that a particular use is inherently within fair use just because it is for nonprofit and educational purposes, or because you cited the source of the work or restricted access to the materials to students in the class. On the other hand, limiting the amount of material you post on your website and restricting access to the material are important ways of strengthening your claim of fair use.
Fair use depends on a balancing of four factors outlined in Section 107 of the Copyright Act. Listed below with each factor are some suggestions that may be helpful in conducting fair use analyses, particularly in the context of posting to a CMS or a course website. Because each situation will be different, you must also consider other possibilities and weigh them in the balance for each fair use determination. However, you do not necessarily need to take every possible precaution and satisfy all four of the statutory factors; some adjusting of the implementation of the following procedure may still keep your activities within the boundaries of permitted use.
To establish the strongest basis for fair use, consider and apply the four factors along the lines of the following suggestions. Remember, fair use involves a balancing of the factors and the “fairness” of the overall circumstances. In other words, you do not always need to comply with all of the suggestions listed here, but a strong case for fair use may likely have taken most or all of these variables into consideration. The interactive Fair Use Evaluator (ALA) can guide you through the variables for fair use and provide a helpful record of your evaluation of the law.
Purpose of the Use
- Materials should be placed online only for the purpose of serving the needs of specified educational programs.
- Materials should be placed online only at the specific request of the instructor.
- Access to materials should be limited by password or other means to deter unauthorized access beyond students enrolled in the specific course for which the materials are needed. (Note: Marlboro’s Moodle security defaults to community-wide access. If you feel you need to limit access to just those students in your class please contact your academic technologist.)
- Students should not be charged a fee specifically or directly for access to materials placed online, and no person or unit at the university should benefit monetarily from the use of the material.
Nature of the Original Work
- The selected work should be relevant to the educational objectives of the course.
- The law of fair use applies more narrowly to highly creative works; accordingly, avoid substantial excerpts from novels, short stories, poetry, modern art images, and other such materials.
- Instructors should carefully review uses of “consumable” materials such as test forms and workbook pages that are meant to be used and repurchased.
Amount of the Work Used
- Materials placed online should generally be limited to brief works or brief excerpts from longer works. Common examples: a single chapter from a book, a single article from a journal, or individual news articles.
- The amount of the work placed online should be related directly to the educational objectives of the course.
Effect of the Use on the Market for the Original
- Materials placed online should include a citation to the original source of publication and a form of a copyright notice. If the original work has a copyright notice (e.g., “Copyright 2009, Jane Smith”), copying that notice with the materials is probably a good idea. The instructor should also advise students that the materials are made available exclusively for use by students enrolled in the course and must not be distributed beyond that limited group.
- Access to materials should be limited by password or other means to deter unauthorized access beyond students enrolled in the specific course for which the materials are needed. (Password control or other limited access is also important to the “purpose” factor, as noted above. Note: Marlboro’s Moodle security defaults to community-wide access. If you feel you need to limit access to just those students in your class please contact your academic technologist.)
- The CMS or a course website should include only material for which the instructor, the library, or another unit of the educational institution possesses a lawfully obtained copy.
- Materials placed online should not include works that are reasonably available and affordable for students to purchase—whether as a book, as a coursepack, or in other format.
Other Statutory Exceptions
The U.S. Copyright Act includes a variety of statutory exceptions, in addition to fair use, that may be helpful for the use of copyrighted materials at the university. For a summary of the provisions, visit Columbia University Copyright Office’s Other Rights of Use. The Exceptions for Instructors tool (ALA) can help with determining whether the performance or display of materials in the classroom or online courseware is permissible.
Alternative Means of Delivery
- Using Traditional Coursepacks: Consider using coursepacks if permission to post materials electronically is denied by the copyright owner but permission is available for creating hardcopies of the same materials.
- Requiring Students to Purchase Materials: Encourage students to purchase materials if available at reasonable cost, especially when assigning substantial reading. Simple purchases seldom raise copyright issues, especially if the materials are ordered through the bookstore, online, or through other ordinary means.