Exceptions & Defenses to Copyright Infringement (2024)

Exceptions & Defenses to Copyright Infringement

Last Updated: 06/14/2021 13:23

Three Exceptions

Face-to-Face Instruction Exception

Copyright law¹permits the performance or display of legally licensed/purchased works, for strictly and directly pedagogical purposes relevant to the course, in face-to-face classes at nonprofit, accredited schools. Such works include the showing of a film, playing music, performing a play, projecting images, and other types of performances and displays of copyrighted works in the classroom, as long as the work was lawfully acquired.

TEACH Act - Online/Distance Instruction Exception

The "TEACH Act,"²permits uses of copyrighted works in online classes, but only under certain circ*mstances. To determine if your intended use would qualify, please refer to theTEACH Act Compliance Checklist (PDF).

One of the requirements of the TEACH Act is the inclusion of a copyright statement in your course which is available to all your students. To meet this need we havean example copyright statement. We recommend its inclusion in every online course.

Fair Use Exception

The Fair Use Factors

1. Thepurpose and characterof theuse, including whether such use is of a commercial nature or is for nonprofit educational purposes.
   • Nonprofit educational uses, including using a copyrighted work for scholarly criticism or commentary, making copies for face-to-face classroom use, repurposing a copyrighted work for class material, will tip the balance in favor of fair use.
   • The more the purpose and character of your use differs from the original nature of the copyrighted work, such as creating a parody, using the work in a new way to fit class material…etc., the more this factor will tend to favor fair use.
   • Digitization of works to provide access to the print disabled, to enable indexing, and to enable ‘non-consumptive research’ (e.g. text mining) will likely tip the balance in favor of fair use.
   • Use of copyrighted works for direct pedagogical purposes strengthens a fair use argument.
   • Use of copyrighted works, such as images or video, for decoration in an online course with no transformative purpose will likely undermine a fair use argument.
2. Thenatureof thecopyrighted work.
   • Use of a published work is more likely to be considered fair than use of an unpublished work.
   • Use of factual or non-fiction-based work tends to tip the balance in favor of fair use, whereas the use of highly creative work (such as art, music, novels, and films) tends to tip the balance against fair use.
3. Theamountandsubstantialityof the portion used in relation to the copyrighted work as a whole.
   • Minimal copying of small amounts of larger works, such as a few pages from a book, will favor fair use when they are truly excerpts and do not serve as replacements for the original works.
   • Lower percentages of an excerpt copied (e.g., under 10%) favor fair use. In other words, the smaller the amount, the better!
   • BUTcopying of a quantitatively small portion of a work can weigh against fair use if the portion used is the “heart of” the work. For example, if you copy pages from a book which contain content so important as to nullify anyone’s need to buy the book, this would weaken fair use (note that this affects Factor Four below). If the portion used is not central or significant to the entire work, it will likely favor fair use.
   • The extent of permissible copying under fair use varies with the purpose and character of the use. For example, a transformative use of a whole work, i.e. parody or scholarly criticism, might weigh in favor of fair use if the amount is appropriate for the purpose.
   • Copying an entire work may be permissible, if necessary, to make the work accessible to people with disabilities.
   • Please note:
     • Use of unlicensed commercial ‘stock’ images in a course is discouraged. Commercial ‘stock’ images are photographs or illustrations that are being sold through a vendor web site, such as Getty Images, iStock, Adobe Stock, and the like.Learn where to find images that are free to use, andhow to check any images you aren’t sure about.
     • Copying of journal articles, in their entirety, into an online course may violate the licensing terms which govern the UNT Libraries’ subscriptions to online journals and databases. A great alternative is linking out directly to the article in the UNT Libraries’ electronic resources.Your subject librariancan assist you with this process!
4. Theeffectof the use upon thepotential marketfororvalueof the copyrighted work.
   • The first three factors affect the analysis of this factor. For example, if the proposed use is for educational purpose and the amount used is appropriate, the use may likely not have a significant effect on the market or value of the work.
   • If the use is transformative and the amount of use is small, the fourth factor will tip in favor of fair use.
   • Courts will look at whether the use would damage or negate the potential market for the original work. With respect to impact on potential licensing revenue, courts look at “traditional, reasonable, or likely to be developed markets.” If the use would significantly impair a market or potential market, it will undermine a fair use argument.
   • Some courts consider whether licensing of content is easily accessible, reasonably priced, and available for the portion and format we seek to use. If a license is readily available for the portion of the use, it may undermine a fair use argument.

Attribution

Generally, attributing a work to the rightful owner is recommended as a matter of academic ethics, and doing so demonstrates our good faith. In some cases, attribution may be required by the terms of a Creative Commons license.Learn more about Open Access Creative Commons licenses, and how to attribute Creative Commons works.

When Fair Use Does Not Apply

When a proposed use of copyright material does not fall within the fair use doctrine or another copyright exception, then written permission, such as a license agreement, from the copyright owner is required to engage in use.

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1 -17 U.S.C. § 110(1).
2 -17 U.S.C. § 110(2).

Copyright Guide

• DSI CLEAR
• Accessibility Online
• Copyright Guide
• Videos on Copyright
• Usable Works
• Video Hosting Practices
• Compliance Checklist
• Checking Images for Infringement
• Creative Commons
• Copyright Statement Example
• More Copyright Resources
• Textbook Publisher Permissions
• Frequently Asked Questions
• Subject Release Form
• Online Teaching
• UNT Syllabus Template
• UNT Teaching Excellence Handbook
• Teaching Consultation Request