Answered By: Gail Clement
Last Updated: Oct 30, 2015     Views: 96

It is important to mention at the outset that our Library Copyright specialists do not provide legal advice. That means we can not say whether your use of copyright material is "ok" or "not okay." Only a qualified attorney hired to represent you is able to render that service. But as knowledgeable copyright educators and managers, we are eager to provide as much help as possible to help you make an informed decision about whether the scenario described in your message can take place so you don't worry about infringement.

As you surmised, copying portions of a copyrighted book and distributing that material to others over the Web could represent copyright infringement because U.S. law gives the owner of the material the right to copy, change, distribute, and publicly display or perform copyrighted material. The scenario described above would thus violate the owner's rights in multiple ways. There are three approaches to proceed with your described use and adhere to the law:

  1. Select material for which the copyright owner has already given permission. An example would be an open access resource distributed with a Creative Commons license that permits copying and sharing on the Web, as long as attribution is made to the source. Further information about Creative Commons licenses is available at their website. You can find open textbooks and other teaching resources for many different subjects areas online at the Open Educational Resources Commons.
  2. Obtain permission for your use from the copyright owner. This means determining who owns the copyright of the material (author, author's employer, publisher, or another party) and securing permission from them. Note that silence does not constitute a permission, if no reply comes back.
  3. Make a determination that your use falls within Fair Use, a legal right to use copyrighted material <strong>*under certain circumstances*</strong> without the owner's permission. If Fair Use applies, you do not need to contact the copyright owner because your permission is, in effect, coming from the US Congress, who drafted our copyright law, and the Founding Founders, who drafted our Constitution!

How do you know if a use is Fair?

U.S. copyright law states that we must consider Four Factors in analyzing whether the specifics of your intended use: (1) the purpose of your use; (2) the nature of the copyrighted material being used; (3) the amount of material used; and (4) whether the proposed use would compete with the copyright owner's ability to market the material. These four factors are the mechanism by which U.S. copyright law tries to balance your beneficial use as a teacher with the right of the textbook owner's right to make a living from the textbook.

Though teaching is often a good candidate for Fair Use, not all educational uses of copyrighted material qualify as Fair Use. To determine whether yours does, you need to do a Four Factors analysis. A super helpful tool to guide that process is the Fair Use Checklist developed by Kenneth Crews and Dwayne Buttler, two well-established copyright educators and attorneys. Best practice at many US campuses is to rely on the Fair Use Checklist to explain the four factors, but please keep in mind that it is an educational tool, not part of the law. The tool will not tell you for sure whether your use is fair but it helps you organize your thinking so you can gain confidence in your fair use analysis.