Scholarly Communications

If copyright gave creators the ability to completely control all uses of their works, creativity and culture would soon grind to a halt. No work is created in a vacuum; all new works build on, are influenced by, and make reference to works that have gone before. Moreover, since copyright has some fundamental public interest purposes, it's important that the public be able to do some kinds of things with all works. There are many exceptions an limitations to copyright, but there are four exceptions and limitations that are of particular interest to higher education:

• Classroom Use
• Fair Use
• First Sale
• Archives and Libraries

Copyright law places a high value on educational uses. The Classroom Use Exemption (17 U.S.C. §110(1)) only applies in very limited situations, but where it does apply, it gives very clear rights.

To qualify for this exemption, you must satisfy the following conditions:

1. Be in a classroom "or similar place devoted to instruction"
2. Be there in person, engaged in face-to-face teaching activities
3. Be at a nonprofit educational institution
4. The work being displayed or performed was lawfully made or if the instructor has no reason to believe that it was unlawfully made

If (and only if!) you meet these conditions, the exemption gives both instructors and students broad rights to perform or display any works. That means instructors can play movies and music for their students, at any length (though not from illegitimate copies!).

Instructors can show students images, or original artworks. Students can perform arias, read poems, and act out scenes. And students and instructors can do all these things without seeking permission, without giving anyone payment, and without having to deal with the complications of Fair Use.

But Be Careful!

The Classroom Use Exemption does not apply outside the nonprofit, in-person, classroom teaching environment. It doesn't apply online—even to wholly course-related activities and course websites. It doesn't apply to interactions that are not in-person—even simultaneous distance learning interactions. It doesn't apply at for-profit educational institutions.

The Classroom Use Exemption also only authorizes performance or display. If you are making or distributing copies (i.e., handing out readings in class), that is not an activity that the Classroom Use Exemption applies to. However, distributing copies might be covered under fair use.

The TEACH Act (17 U.S.C. §110(2)) does create some rights for teaching uses of copyrightable works in the online environment, but it can be difficult to navigate with all the various restrictions.

Fair use (17 U.S.C. §107) is a major limitation on the rights of copyright owners that is important for educational contexts. Because of fair use, certain kinds of uses are allowed, without permission or payment from the copyright holder at any point during the copyright term. In fact, fair use is permitted in some cases even if there has been an explicit denial of permission or license. Fair use is why things like quoting a book in order to review it, or publicly displaying a reproduction of an artwork in order to critique it, are legal.

Check out our page on Fair Use for further information.

First sale (17 U.S.C. §109) limits a copyright owner's right to control distribution of copies—once a single copy has been sold, that particular copy can be redistributed, by anyone, through resale, lending or donation. First sale is one of the legal rules through which libraries are able to lend materials in their collections to their user communities. It's also how the used book, CD, movie, game, and software markets work. However, End-User License Agreements are beginning to have serious restrictive effects especially in the digital realm.

Exceptions for libraries and archives (17 U.S.C. §108) are written into the US Code, which permit them to use copyrighted material in specific ways without permission from the copyright holder. This does not replace fair use, which is codified in section 107. Librarians, archivists, and library users can rely on fair use just like everyone else. In fact, in many cases fair use may apply when section 108 does not. Section 108 permits libraries and archives to:

• Make one copy of an item held by a library for interlibrary loan;
• Make up to three copies of a damaged, deteriorated, lost, or stolen work for the purpose of replacement. This only applies if a replacement copy is not available at a fair price;
• Make up to three copies of an unpublished work held by the library for the purpose of preservation. If the copy is digital, it cannot be circulated outside the library;
• Reproduce, distribute, display, or perform a published work that is in its last 20 years of copyright for the purposes of preservation, research, or scholarship if the work is not available at a fair price or subject to commercial exploitation;
• Make one copy of an entire work for a user or library who requests it if the work isn't available at a fair price.

The following restrictions must be observed when appealing to this exception:

• It applies only to libraries and archives open to the public, or to unaffiliated researchers in a specialized field (OSU Libraries meets this exception);
• Copies cannot be made for commercial purposes;
• The copying cannot be systematic (e.g., to replace subscriptions);
• All copies made under this exception must include a notice stating that the materials may be protected under copyright.

The current version of section 108 was updated with the passage of the Digital Millennium Copyright Act of 1998.