Editor's notes:
POLICY TITLE: Fair Use Policy of
Carnegie Mellon University
DATE OF ISSUANCE: This policy was
approved by President’s Council on April 11, 2013.
ACCOUNTABLE DEPARTMENT/UNIT: University
Libraries. Questions on policy content should
be directed to the Dean of University Libraries, ext. 8-2447, or to Office of
the General Counsel, ext. 8-3662.
ABSTRACT: This policy presents
Carnegie Mellon University's criteria for the use of materials copyrighted by
third-parties within the purview of the Copyright Act, and was previously titled Copyright Policy of Carnegie Mellon
University.
RELATED INFORMATION:
Fair Use
Policy of Carnegie Mellon University
Members of
the university community often find it necessary to make scholarly use of
materials copyrighted by third-parties. The
Copyright Act contains many exceptions and limitations that permit the use of a
work without the permission of the copyright owner, most notably fair use.
1.
It is the policy of Carnegie Mellon
University that all members of the University community must comply with U.S.
Copyright Law, in particular the Copyright Act of 1976, 17 U.S.C § 1, et
seq.
2. Copyrighted works may be used freely by the copyright owner.
Works in the public domain (generally,
material published before 1923) may be used freely by everyone.
3. Faculty, students, and staff members of Carnegie Mellon
University may use copyrighted materials of other parties provided such
activities are allowed by license or by a specific exception in copyright law
including but not limited to:
·
17 U.S.C. § 108 - library uses;
·
17 U.S.C. § 109(a) - the first sale doctrine;
·
17 U.S.C. §
109(a) - the right to display copies;
·
17 U.S.C. § 110(1) - performance and display in classrooms;
·
17 U.S.C. § 110(2) - distance education; and
·
17 U.S.C. § 121 - reproduction and distribution of copies in
specialized formats for the print disabled.
4. When
a proposed use is not permitted by license and does not fall within one of the
specific exceptions, it may still be permitted under the fair use doctrine,
codified at 17 U.S.C. § 107. Appendix A
to this policy contains guidance to assist
university community members in determining whether a use qualifies as a fair
use.
5. When a proposed use of copyright material does not fall
within the fair use doctrine and is not otherwise permitted by license or
exception, written permission from the copyright owner is required to engage in
use.
Appendix
A: Guidance on Fair Use
Standards
Background
The
ability to reuse pre-existing copyrighted materials is central to the mission
of the University in the 21st Century. A faculty member might wish to include a
quotation in a book or distribute an article to her students through a course
website. A student might want to create
a multimedia project incorporating images, film clips, and music samples for a
class assignment. A librarian may seek
to digitally preserve archival material.
The Copyright Act contains many exceptions and limitations that permit
the use of a work without the permission of the copyright owner, most notably
fair use. Although these exceptions have always been important to the academic
enterprise, the digital revolution enables a wide range of new uses that
significantly enhance the educational and scholarly process, thereby increasing
the reliance on these exceptions generally, and fair use in particular.
According to the Supreme Court, the objectives of
the fair use doctrine are to preserve free speech and to promote creativity.
Codified in the Copyright Act of 1976 at 17 U.S.C. § 107, the preamble to the
fair use doctrine lists six favored purposes: criticism, comment, teaching,
scholarship, and research. For this reason, the Supreme
Court has recognized that “the fair use defense affords considerable latitude
for scholarship and comment.”
After the preamble, Section 107 sets forth four
non-exclusive factors courts must consider in determining whether a use is
fair. Courts have broadened their interpretation of the four factors
significantly over time. Recent interpretations have favored educational uses
involving new technologies.
When conducting a fair use analysis, members of the
University community should consider (1) the fair use factors and (2)
applicable codes of best practices. The
following guidance is designed to assist members of the University community in
conducting a proper fair use analysis.[1][1]
1.
The Fair Use Factors
Members of the University community are required by
Section 107 to consider and balance the following factors to determine if a use
qualifies as a fair use. The factors should not be balanced mechanically, but
weighed together “in light of the purposes of copyright.” The ultimate test of
fair use “is whether copyright’s goal of promoting the Progress of Science and
useful Arts would be better served by allowing the use than by preventing it.”
A.
The
purpose and character of the use, including whether the use is of a commercial
nature or is for nonprofit educational purposes.
·
Courts have favored nonprofit
education uses, including making multiple copies for classroom use, and
“transformative” uses where the new use does not supersede the originally
intended us.
·
The repurposing or
re-contextualization of a work can be transformative, even if the work itself
is not modified.
·
Digitization of works to provide
access to the print disabled, to enable indexing, and to enable
“non-consumptive research” (e.g. text mining) has been considered
transformative.
B.
Nature of
the copyrighted work.
·
Courts have favored uses of factual
works, as opposed to fiction, and uses of published works as opposed to
unpublished works.
·
If a use is transformative, the
nature of the work is less important.
C.
Amount and
substantiality of the portion used in relation to the copyrighted work as a
whole.
·
Minimal copying does not trigger
infringement liability and thus does not require fair use analysis.
·
The extent of permissible copying
under fair use varies with the purpose and character of the use.
·
Copying an entire work may be
permissible if necessary to achieve a legitimate purpose. For example, the copying of entire works did
not weight against fair use when necessary for the purpose of providing access
to the print disabled or providing a search index to complete works.
·
Copying of a quantitatively small
portion of a work can weigh against fair use if the portion used is “the heart”
of the work.
·
The inclusion of one chapter of a
book in electronic course reserves did not weigh against fair use even when the
publisher made available licenses for digital excerpts.
D.
The effect
of the use upon the potential market for or value of the copyrighted work.
·
Although in the past this factor was
considered to be the most important in the fair use analysis, this no longer is
true.
·
Courts examine whether the secondary
use usurps the market for the original work.
·
With respect to impact on potential
licensing revenue, courts look at “traditional, reasonable, or likely to be
developed markets.”
·
Markets for transformative uses are
not traditional markets; hence, a transformative use does not impair the market
for purposes of this factor.
·
Even when a court concluded a use
was non-transformative, it considered the adverse impact on a licensing market
only if the license was easily accessible, reasonably priced, and available for
the portion and format the user sought to use.
E. Good Faith of User
·
Some courts have identified a fifth,
non-statutory factor: whether the user acted in good faith.
·
This factor should typically weigh
in favor of nonprofit educational uses.
·
Documentation of the user’s fair use
analysis, such as a fair use checklist or a statement of pedagogical need,
demonstrates the user’s good faith.
Although copyright law generally does not require a user to
attribute the source of material, such attribution demonstrates the user’s good
faith. (Attribution often also is
required as a matter of academic ethics as well as the terms of a Creative
Commons license.)
In addition, courts have treated as
fair use:
·
Copying incidental to the streaming
of films assigned for courses;[2][2]
·
Inclusion of chapters of monographs
(but not textbooks) in electronic course reserves;[3][3] and
·
Mass digitization of books for the
purpose of preservation, creating a search index, and providing access to the
print disabled.[4][4]
When considering similar uses,
members of the University community should treat these decisions as important
guideposts.
2.
Best Practices
Several
educational communities have developed codes of best practices in fair use.[5][5]
These codes each represent a community’s consensus about acceptable
practices for the fair use of copyrighted materials. Legal scholarship has demonstrated that
courts give weight to what a relevant community considers to be acceptable
practice. When exercising the fair use
doctrine, members of the University community should consult and follow the
appropriate code of best practices.
In particular, the Code of
Best Practices in Fair Use for Academic and Research Libraries articulates a set of principles for how fair use applies to
certain common practices in the university setting. The Code
sets forth limitations that should be observed to assure that the case for fair
use is strong, and enhancements that could further strengthen that case. These principles include that it is fair use
to:
·
Make appropriately tailored
course-related content available to enrolled students via digital networks;
·
Make digital copies for purposes of
preservation, and to make these copies available as surrogates for fragile and
inaccessible materials;
·
Create digital versions of a
library’s special collections and to make these versions electronically
accessible in appropriate contexts;
·
Reproduce materials in accessible
formats for disabled students when fully accessible copies are not readily
available for commercial sources;
·
Receive material for an
institutional repository, and to make deposited works publicly available;
·
Develop digital databases to enable
non-consumptive analysis for scholarly and reference purposes, including
search; and
·
Create collections of websites and
other material from the Internet and to make them available for scholarly use.
The enhancements often involve the
use of technological measures to restrict access to the appropriate set of
users, and to prevent unnecessarily broad dissemination. Like the judicial determinations of fair use,
this Code of Best Practices should
inform the fair use calculus performed by members of the University community.[6][6]
Although the judicial decisions and
the Codes of Best Practices are
instructive, members of the University must consider the application of the
fair use doctrine to the unique facts of the proposed used.
Questions
Faculty
and Staff members with questions regarding fair may contact:
Footnotes
[1] This guidance contains citations to
some more recent court decisions. For
the sake of brevity not all legal principles in this guidance contain
citations. Please contact the Office of
the General Counsel if you have any questions regarding this guidance.
[2] Association
for Info. Media and Equip. v. Regents of the Univ. of Cal., 2011 WL 7447148
(C.D. Cal. Oct. 3, 2011).
[3] Cambridge
Univ. Press v. Becker, 2012 WL 1835696 (N.D. Ga. May 11, 2012).
[4] Authors
Guild Inc., v. Hathi Trust, 2012 WL 4808939
(S.D.N.Y. Oct. 10, 2012).
[5] See
Association of Research Libraries, Code
of Best Practices in Fair Use for Academic and Research Libraries
(available at http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf); see also American University Center
for Social Media, Code of Best Practices in Fair Use for Open Course Ware;
Code of Best Practices in Fair Use for Media Literacy Education; Code
of Best Practices in Fair Use for Scholarly Research in Communication; and Society
for Cinema and Media Studies’ Statement of Best Practices in Fair Use in
Teaching for Film and Media Educators (available at http://www.centerforsocialmedia.org/fair-use/best-practices/fair-use-codes-best-practices).
[6] As noted above, other fair use
Codes of Best Practices may be relevant as well.