Although the issues are complex, sometimes a simple question can do a lot: If this were my own work, would I want it to be used without my permission in this case?
Failing reliance on the Golden Rule, let us plunge into some of the complexities:
Companies that produce course readers are supposed to make sure that you have secured permission for articles you include. Whether they actually do this is another matter. But it is your responsibility to check.
Now that Berkeley, like many universities, has site licenses for a number of scholarly journals and clearinghouses, like jstor, it is very easy to access materials online that we couldn’t get to before. Remember that just because you can print it out does not mean you can then copy it for a reader.
The intricacies of using copyrighted materials online are vast. But the best simple rule is this: you can provide a URL without any problem. Many URLs faculty provide are to articles and journals that are accessible only to UCB students, faculty, and staff, because the library has purchased a license for that site. But to copy an article or a pdf from one of these controlled-access sites may be a violation, even if you are not printing it but putting it online for your students, so it is better to provide the URL.
Please note that when you do upload resources to bSpace, the site does ask you about copyright. Instead of just clicking through this question, you might actually ask yourself whether you do have permission to post.
A major point for faculty to consider is that protecting a site by password or other firewall technologies may improve the “balancing test” (see below) inherent in the determination of fair use but does not necessarily mean fair use considerations can be discarded, or that fair use is somehow looser if those protections are utilized.
UC Guidelines and UC Copyright Education website
Fair Use guidelines are a moving target. Below we provide a variety of links to excellent resources, but first, a summary from the UC Copyright Education Website(link is external), which should be essential reading for all faculty who are interested in this issue, or are wondering whether they may be in violation of fair use policies. This excerpt involves the “four factors” regarding fair use in US copyright law and how they might apply to faculty:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes, but not all educational uses are fair use.
- the nature of the copyrighted work -- reproducing a factual work is more likely to be fair use than a creative work such as a musical composition
- the amount and significance of the portion used in relation to the entire work -- reproducing smaller portions of a work is more likely to be fair use than large or essentials portions
- the impact of the use upon the potential market for or value of the copyrighted work -- uses which have no or little market impact are more likely to be fair than those that interfere with potential markets”
No guidelines have been established nationally or at the University for fair use in electronic media. The University adopted guidelines in 1986 for the reproduction (photocopying) of copyrighted works for teaching and research purposes, and these could be consulted for general parameters. The University’s guidelines parallel in most, but not all, respects a nationally developed set of guidelines that was approved by some educators and content providers, but not all. The national guidelines do not have the force of law, but are widely known. They have been criticized as having created a “ceiling” rather than the intended “floor,” and being ill-suited to higher education. Nonetheless, we recommend that instructors review the 1986 University of California Policy on the Reproduction of Copyrighted Materials for Teaching and Research(link is external).
Here is a helpful section from those documents:
A. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion provided that:
- The copying does not substantially exceed the test of brevity as defined below; and
- Meets the cumulative effect test as defined below; and
- Each copy includes a notice of copyright.
(1) Poetry: A complete poem if less than 250 words or, from a longer poem, an excerpt of not more than 250 words.
(2) Prose: Either a complete article, story or essay of less than 2,500 words or an excerpt of not more than 2,500 words from any prose work.
(3) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue. In some cases, such illustrations are copyrighted individually and cannot be reproduced under fair use. (See IV C below)
- Cumulative Effect
(1) The copying of the material is for only one course per class term of the instructor for whom the copies are made.
(2) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
(3) There shall not be more than nine instances of such multiple copying for one course during one class term.The limitations stated in (1) and (2) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.
C. Prohibitions as to a) and b) above Notwithstanding any of the above, the following shall be prohibited:
- There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets, answer sheets, and like consumable materials.
- Copying shall not:
(1) substitute for the purchase of books, publishers' reprints, or periodicals;
(2) be directed by higher authority;
- No charge shall be made to the student beyond the actual cost of the photocopying.
Know Your Copy Rights(link is external)
An extremely helpful printable booklet aimed at faculty and GSIs. It includes What You Can Do(link is external) [pdf] and Using Copyrighted Works in Your Teaching—FAQ: Questions Faculty and Teaching Assistants Need to Ask Themselves Frequently(link is external) (by Peggy Hoon, JD, Visiting Scholar for Campus Copyright and Intellectual Property, Association of Research Libraries).
Fair Use Q and A Copyright in Teaching, Research and Publishing
Compiled by the Library, this lists a number of links to other useful sites.
The Center for Social Media at American University has produced an excellent "Code of Best Practices in Fair Use for Media Literacy Education." [pdf] It includes a final section on myths about fair use that does a good job of destroying weak rationales for some of the things educators do.
UCOP(link is external) also maintains a website about copyright.