Copyright Clearance and Fair Use at the University of Rochester

The University of Rochester acknowledges and encourages the appropriate use (i.e., reproduction, distribution, performance and display) of copyrighted works and materials for teaching, scholarship and research purposes consistent with federal copyright law and the standards for fair use. Given both the importance of complying with federal copyright law and the difficulty of determining fair use, this document provides guidance for the use of others' work as well as links to copyright and fair use resources.

For purposes of this policy, copyrighted works and materials include all audio visual, electronic, and printed works and materials under copyright protection. Some materials are not subject to copyright protection, including:

works that lack originality (the phone book);
freeware;
US Government works;
facts;
ideas, procedures, concepts, principles or discoveries; and
works in the public domain, including works with copyrights that have expired (generally older than 95 years). Since a copyright notice is no longer required, the absence of the ©, especially for works published after 1978, does not necessarily mean the work is in the public domain.

Works that are subject to copyright protection should only be used with the permission of the copyright owner or with a documented determination of fair use or other exception to the copyright law. While fair use (section 107) is probably the most widely used exception to seeking permission for uses of copyrighted works, especially in the university environment, there are other exceptions in the copyright law, including section 108 which applies to reproduction by libraries and archives, and section 110 which allows performance or display of copyrighted works in "face-to-face" teaching activities. There are also specific rules for music (section 107, section 112, section 114, section 115) and works of visual art (section 113).

Reliance upon the fair use exception should be limited to those cases that clearly meet the four-factor fair use balancing test and are carefully documented to support that conclusion. All faculty, instructors, and other authorized personnel should be familiar with the fair use standards; they are encouraged and authorized to make and document a good faith application of these standards to all University-related uses. It is essential that members of the University community make a diligent effort to stay within the bounds of the law in order to avoid both institutional and personal liability for copyright infringement. If in doubt, request permission from the copyright owner.

A. Fair Use

The concept of fair use is embodied in section 107 of the copyright law. This law provides that certain limited use of copyrighted materials for such purposes as teaching, criticism, commentary, reporting, scholarship and research is not infringement of copyright. The law sets forth four factors to be considered when making a determination of fair use:

• 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;

• The effect of the use upon the potential market for, or value of, the copyrighted work.

These four factors are often difficult to apply and highly subjective. A proper review using these factors requires making several judgments in the course of "weighing" and "balancing" many facts. The Fair Use Analysis Worksheet contains information to help with this analysis. In addition to the internal resources available in the Rush Rhees, Sibley and Miner libraries, as well as many external resources to assist in making this determination.

B. Approval Procedure and Documentation Requirements

Faculty members, instructors or other authorized personnel should carefully review any copyrighted material to be used and determine whether they need to seek permission from the copyright owner. Unless some other exception under the copyright law clearly applies, this determination involves carefully considering the four fair use factors for each copyrighted work. Any fair use determination must be documented by completing and signing the attached Fair Use Analysis Worksheet, a copy of which should be kept with the course material or other relevant file.

Even after fair use has been determined and documented, there are other guidelines which should be followed whenever feasible, including the following:

• The number of copies should be limited to the number of students in the class or, in an electronic environment, passwords or some other authentication method to insure should be used to insure that only students enrolled in that class have access to the copyrighted material;
• Web pages that contain copyrighted material for classroom use should be deactivated or made inaccessible when the class is over or the material no longer needed;
• Duplicated, distributed, or displayed material should always include available bibliographic and copyright information;
• Students should not be charged more than the actual cost of copying, producing, or other wise making the material available;
• Faculty should generally obtain permission for materials that they use repeatedly for the same class.

C. Obtaining Permission

If it is determined that neither fair use nor any other copyright exception applies, permission must be sought from the copyright owner for each specific use (unless a blanket permission has been secured).

Barnes & Noble, the University’s exclusive seller of textbooks, coursepacks and other course material can assist in obtaining copyright clearance. Persons wishing to procure their own permissions may also apply directly to the copyright owner or through the University to the Copyright Clearance Center. Complete and accurate information will facilitate any request and should include the owner of the copyright (consult the copyright page and/or the acknowledgment page), the address of the publisher or author, a complete bibliographic citation of the material to be used (including title, author and/or editor, copyright or publication date, volume and/or issue and/or edition of the publication, chapter or article title, and the exact page numbers of the material to be used), the number of copies to be made, and the exact nature and purpose of the intended use.

(Revised 12/21/98)

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