FAIR USE · University of Denver Guidelines
in the Context of Electronic Information Technology

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Increasingly, University faculty and staff are utilizing electronic information technology to enhance their curricular endeavors. Because the law is in a state of flux with respect to intellectual property rights of authors and creators as it relates to electronic media, it is imperative that we structure our policies so as to comply with the spirit of the "Fair Use" doctrine relating to permitted educational uses. This is particularly true in the circumstance of non face-to-face teaching environments. Until some certainty is achieved in the law on this subject, the following guidelines will govern the University community.

First, you are directed to review the excellent web site titled "Fair Use of Copyrighted Materials" and its various subsections, maintained by the University of Texas at www.utsystem.edu/ogc/intellectualproperty. After much study, we find the Texas approach, authored by Georgia K. Harper, Esq. (Manager of the Intellectual Property Section of its Office of General Counsel) to be the most insightful and practical statement on this subject. It also has the advantage of being updated regularly as this very controversial subject continues to evolve. The policy statement below assumes you have reviewed the Texas policy called "Rules of Thumb," and you are directed to apply those concepts as though fully stated here.

The following four requirements are applied by the University with respect to appropriate usage of electronic media to display or transmit proprietary materials such as excerpts from written text, music, photographs, motion pictures/video clips (hereafter "Excerpts") in class related presentations. "Images" represent particularly sensitive issues and should be the subject of careful consideration.

REQUIREMENTS

1. These guidelines for use of Excerpts are distributed to faculty, students, and relevant staff members involved in the course or project and notice must be provided to students that Excerpts used in connection with the course may be subject to copyright protection. When possible, a "click-through" feature will be required to register the user's understanding and agreement to comply.
2. The performance or display of the Excerpt is made by, at the direction of, or under the actual supervision of the instructor as an integral part of a class session or assignment, and thus, the performance or display is directly related, and of material assistance, to the teaching mission.
3. The transmission is made solely for, and the reception of such transmission is limited to, students officially enrolled in the course for 
   which the transmission is made (i.e. Web sites are password protected with access limited to students enrolled in the class).
4. Retention of the work in accessible form by all recipients is limited to the length of the class session term.

(As a general reminder, there are four guidelines built into the Copyright law that assist in determining whether a use qualifies as a Fair Use. These rules apply regardless of whether electronic media or more traditional means of presentation are used.)

GENERAL FACTORS

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This first factor usually weighs in our favor because we are a nonprofit university and we are making nonprofit educational uses of materials copied for teaching purposes.
2. The nature of the copyrighted work. There is a spectrum of analysis relating to the nature or character of the work. Generally, the more factual or information oriented the work, the more easily it fits into a fair use context. Conversely, the more fanciful or creative the work, the less easily a fair use argument can be made. This factor may, however, be outweighed by other factors.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Generally, one may only use a "small" portion of the work to be copied. This factor may weigh against fair use if each article or component is considered a whole work. Generally, as the amount copied increases, fair use decreases, but our status as a nonprofit entity has a mitigating effect upon this factor.
4. The effect of the use upon the potential market for or value of the copyrighted work. Use of the Excerpt must not act as a material detriment to the potential market or value to the owner of the original work. This factor is changing as the market for permissions and reprints grows. This factor may weigh against a finding of fair use if publishers can show that they are losing licensing and royalty fees as a result of copying.

Please remember that you may have personal liability for infringement if you exceed the Fair Use exceptions to the Copyright Law. Use common sense and your own sense of basic fairness in considering a proposed use of a proprietary work. If consent is easily obtained, then do so. In the event of a particularly difficult Fair Use issue, please contact your Department or Division Head or the office of the Vice Chancellor for Intellectual Property & Events. You may also contact the office of the Dean of our library system if the matter pertains to the reserve system.

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