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.

 



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