The "Fair Use" Exemption
Critical to the mission of this University is the so-called "fair use" exemption. It allows limited uses of copyrighted works without permission from the copyright holder. The Copyright Act lists four factors to be weighed collectively when determining whether a proposed use falls within this exemption:
- The purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
No single factor is determinative, either for or against a finding of "fair use." The first factor weighs in favor of what we generally do as a non-profit University; however, that is not the end of the analysis. The second factor weighs in favor of uses that involve highly factual materials in which the creative expression or "authorship" is minimal. The third factor weighs in favor of uses involving relatively limited portions of the work (unless, perhaps, it is necessary to use the entire work in order to carry out a "fair use" purpose). The fourth factor weighs in favor of uses that do not undermine the copyright holder's opportunity to sell or license the work.
The application of these generally defined factors is highly fact-sensitive and nuanced such that reasonable minds can easily reach different conclusions as to what constitutes a "fair use." Such uncertainty often has a chilling effect on legitimate uses of protected material and thereby frustrates the Constitutional purpose of the Copyright Act. To address this concern, the Act offers additional statutory protections against liability for non-profit educational institutions to the extent their employees are making reasonable, good faith efforts to proceed in a manner consistent with the requirements of the "fair use" exemption.
For further guidance regarding the practical application of the "fair use" factors, consult the University's Fair Use Guidelines or visit the following websites:
- Fair Use Worksheet
- University of Texas Fair Use of Copyrighted Materials
- Columbia University - Copyright Advisory Office
- American Library Association
If the work to be performed or displayed is transmitted electronically to students outside of a classroom, such transmission may be subject to additional requirements and limitations under the TEACH Act, which includes a checklist for TEACH. As a general matter, the University recommends that faculty use its pre-approved resources for electronically transmitting educational materials to students.
The Library Exemptions
The Copyright Act also grants a number of specific exemptions that generally allow libraries to reproduce copyrighted works in their collections for preservation or security purposes and to reproduce portions of such works for the private study, scholarship or research of library patrons.
Library policies may provide further guidance.