October 9th, 2012

Legal Issues in Higher Ed: Common Ways Institutions Violate Fair Use

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A faculty member brings a ragged photocopy of a book chapter to the library to be scanned and loaded to the e-reserves for enrolled students. Does this fall within fair use of the document?

Problems like these confront academic faculty and administrators daily, and it is important to keep up with the latest court rulings to be sure your institution is in compliance. In her recent online seminar, The Copyright Case We’ve Been Waiting for: Key Lessons and Policy Changes, Linda Enghagen, an attorney and professor at the Isenberg School of Management at the University of Massachusetts at Amherst, reviews some of the key considerations of copyright law, updated to include rulings that were made on August 13, the day of the seminar.

Many higher ed professionals believe that the use of copyrighted material in class is protected by “fair use,” but fair use is a limited exception to copyright law that does not cover every educational use of material. There are several ways that institutions can be in violation of fair use. These include:

  • Posting copyrighted material to nonsecure sites
  • Posting material without permission of and payment to the copyright holder
  • Posting material from semester to semester
  • Posting pursuant to overly generous policies
  • Failing to enforce overly generous policies
  • Creating free course packs instead of purchasing collections and anthologies
  • Encouraging and facilitating infringement

The courts have attempted to sort out these infringements and reach solutions that are equitable for all parties. For example, the rule of thumb of fair use limits use of a copyrighted document to less than 10 percent of the whole and a total of one chapter or less. However, rulings address other factors that play into the issues. For example, the ruling is limited to nonfiction books, with limits likely smaller for creative works. Hits also matter, with documents that receive few hits seen to have minimal effect and not rising to the level of violation.