Scenario:
An instructor would like to take digital photographs of paintings, sculptures, or architectural works and share them with her class.

Response:
Works of art and architecture that are not in the public domain may still be available to copy in the form of a photographic image. Photographic reproductions are generally lower-quality and would not likely compete in the same market as the original (if they do, as might be the case with reproducing photographs or digital images, use would likely not be permitted). When deciding if and how to use photographic reproductions of works of art, you should conduct a four-factor fair use analysis for each reproduction.

Also, remember that peoples' faces may not appear in photographs that will be publicly displayed without a signed release. The University's Office of the General Counsel maintains an online Standard Contracts Library, which offers the standard form, Release Photographic Likeness Use. If this form is not what you're looking for, feel free to contact the Office of the General Counsel directly.

Scenario:
An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course WebCT/Vista site. Is this fair use?

Response:
Fair use is determined by the results of the four factor analysis conducted for each work. In this scenario, the instructor must conduct a four factor analysis for each journal article, each textbook section, and any other work she wishes to include on the class WebCT/Vista site. The result may be mixed and fair use might apply to some works while others may require permission from the rights owner for inclusion on the class website.

Scenario:
An instructor wants to create a copy of a documentary and post it to her password-protected course website for download.

Response:
In the face-to-face classroom setting this situation is clearly allowable under the provisions of Section 110(1) in U.S. copyright law. However, until the University meets all of the policy requirements of the TEACH Act instructors can only look to the provisions of fair use when working with media in the online teaching environment.

In this case the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored.

Scenario:
An instructor wants her students to read an article from a professional journal. She accesses the full text of the article as a PDF through the University Libraries. She saves the article to her computer and then uploads it to her course's WebCT Vista site for students to download

Response:
Since the instructor obtained the article from a Libraries licensed electronic resource she needs to understand general limitations and restrictions on use that may be contained in the license agreement between the publisher and the Libraries. The terms of such license agreements control how the materials may be used. It is essential that all instructors using library resources understand their Rights and Responsibilities for the Use of Library-licensed Electronic Resources. Frequently license agreements do not allow copying of PDF files and reposting them to a class web site or WebCT Vista site. However, in numerous instances the instructor can make articles available to students from a course web page through a direct link. To learn how to link directly from your web page to an article available as an electronic resource from the Libraries, see the Linking Methods tutorial.

Scenario:
An instructor has found an article in a professional journal that is particularly useful for a class she teaches every semester. She would like to include the article as reading this semester, and then again next time she teaches the course. Is this a fair use?

Response:
The repeated use of a copyrighted work, from term-to-term, requires particular scrutiny in a fair use evaluation. Such a use explicitly relates to "market effect", the fourth factor in the evaluation. This factor requires one to consider the impact of using a copyrighted work on any market for the original article, including the permissions market. Repeated use, as well as class size, may impact this consideration. Smaller class sizes may mitigate the impact on permissions markets to some extent, and using the article only once, not in future semesters, may further limit the overall market effect of a decision to forego permissions. While not an automatic disqualification, repeated use of a copyrighted work weighs against fair use. For any repeated use to be judged as a fair use, it must be outweighed, in the balance, by the remaining three factors of the evaluation (purpose, nature, and amount).

Scenario:
In the attempt to save students money a professor scans several chapters from an expensive textbook for her course and uploads a PDF file of the chapters to her WebCT/Vista site for students to read. This is the only material the students need from this particular textbook to complete class assignments. Is this a fair use?

Response:
This is not a fair use. A four factor analysis of these circumstances would reasonably conclude that the market is directly affected by this activity. Students who would otherwise be expected to purchase the book no longer need to and the publisher is thus deprived of sales. An alternative approach for the teacher would be to place an appropriately acquired copy of the textbook on reserve in the Libraries or to ask students to purchase the text from the bookstore.