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The Office of General Council establishes guidelines for fair use of copyrighted material for the entire university.  For a full explanation please download their PDF: Copyright and Fair Use: A Guide for the Harvard Community or visit their website here: Copyright and Fair use.

What is “fair use”?

Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.  The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster.  It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works.  Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment.

What is the test for fair use?

The fair use defense is now codified in Section 107 of the Copyright Act.  The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts.  The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright.  To determine whether a given use is fair use, the statute directs, one must consider the following four factors:

•    The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit 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.

These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine. 

What are the rules for performing a musical or literary work, or showing a film or video, in class?

Apart from fair use, the Copyright Act contains a special provision, Section 110(1), that allows teachers to perform or display a copyrighted work, either live or recorded, “in the course of face-to-face teaching activities . . . in a classroom or similar place devoted to instruction.”  Thus, you can use sound recordings, live performances, readings, films or videotapes, slides or any other performance or display of copyrighted works without restriction and without permission, so long as you are teaching students in a classroom or similar place such as a studio.  The only exception is that you may not use a film or videotape that you have reason to believe is an illegally made copy.

Note, however, that this special classroom dispensation applies to performance and display only; it does not authorize making copies.  Nor does it enable you to put materials on your web page, even for course use, because websites are not considered “face-to-face teaching.”  Similarly, if you wish to videotape a class session in which you have performed or displayed others’ copyrighted material and to transmit the video to remote students (e.g., via streaming), a different set of considerations comes into play.  Amended by the TEACH Act in 2002, Section 110(2) of the Copyright Act provides a special exemption for such distance learning activities.  The exemption is conditioned on a detailed set of requirements.  You can find useful descriptions of the TEACH Act requirements at http://www.ala.org/advocacy/copyright/teachact/distanceeducation.  If you cannot meet all of the TEACH Act requirements, you may be able to rely on fair use, if the statutory four factor test is satisfied, or you should obtain permission to use the copyrighted material in the video of your class session.