Fair Use of Copyrighted Works during COVID-19

Photo of phone taking photo of text with question "Fair Use?" posedNo matter your field, you almost certainly use copyrighted works in your teaching and research. Perhaps you’ve wondered how much of a book you can share with students. Or how much of a poem you can excerpt in an article you’re writing. Or whether you can reproduce a recent photograph of an ancient sculpture in your dissertation. Although I’m not a lawyer and can’t provide legal advice, I can offer some information and connect you with helpful resources.

As you may be aware, the copyright law of the United States has a “fair use” provision that accommodates many scholarly and instructional uses of copyrighted works. That is, while copyright law gives creators certain exclusive rights to their works (i.e., the exclusive right to reproduce, distribute, perform, display the work, as well as the exclusive right to create derivative works based on the work), it also places some limitations on those exclusive rights, stipulating that certain “fair uses” are not an infringement of copyright. (There are also special allowances specifically for remote instruction, laid out in the TEACH Act — but that’s a blog post for a different day.)

But what exactly constitutes a fair use? It may come as a surprise that copyright law doesn’t spell out what is and isn’t a fair use. Rather, it lists four factors that must be considered and balanced anew in every fair use determination:

  • the purpose and character of the use, including whether such 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.

Every use of a copyrighted work is different, and the only way to know definitively if your use is fair is to have it decided in court — but of course nobody wants to end up in court! Luckily, there are tools that can help you assess if your use is fair. For example, this tool from the University of Minnesota helps you think through the four factors as they relate to your use. Also, the Authors Alliance’s Fair Use FAQ covers key points, and their full guide to fair use provides instructive scenarios and analyses.

When academic institutions went online due to COVID-19, many researchers and teachers found themselves in more complicated copyright territory than ever before. Without the ability to share physical copies of books, DVDs, etc., what could be copied and transmitted digitally? In March 2020, library copyright experts released a statement on fair use in the context of emergency remote teaching and research, arguing that “U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.” They pointed specifically to the flexibility of fair use, saying that “it accommodates a wide variety of circumstances, including new and rapidly evolving situations.”

Their statement makes a strong argument for the power of fair use, but it doesn’t provide answers to specific questions now common among faculty. However, CUNY Libraries’ Copyright Committee provides just that: it enhanced its guide to Fair Use & Copyright with a helpful FAQ about copyright considerations for teaching during COVID-19. Questions addressed in the FAQ include “I used to assign a textbook that was available on reserve in the library, can I scan it to provide access to my students remotely?” and “What’s the difference between open educational resources and free things I find on the Web?”

Want to learn more about copyright and fair use? Request a copyright consultation with a librarian, or register for the library’s workshop on Fair Use for Non-Fiction Authors on Wednesday, November 18 at 1-2pm. (Again, GC librarians are not lawyers and can only provide education, not legal advice.)

Photo by Elmira Ashirova, used under Pixabay license

About the Author

Jill Cirasella is the Scholarly Communication Librarian and University Liaison at the CUNY Graduate Center.