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NIU Policy Letter

These guidelines are developed to provide guidance to university faculty and staff who are using copyrighted materials in distance instruction. They apply general principles of Fair Use to the distance learning environment. Due to the rapid changes in technology, the applicability of Fair Use to distance education, particularly asynchronous delivery of distance learning over a computer network, is largely unsettled in the law. Since the law is in flux, these guidelines are subject to change as Congress and the courts address these unsettled issues.

Please direct any inquiries you may have regarding Fair Use in online instruction to the Office of General Counsel at 815-753-8365.

Fair Use for Instructional Purposes
The Fair Use section of the Copyright Law provides an exception to the general principle that the copyright holder retains exclusive control over a copyrighted work. Fair Use allows for the limited reproduction of such works for educational purposes, including teaching, scholarship and research.

General factors that are applied to determine whether use of a copyrighted work falls under Fair Use Guidelines include:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

These factors must be considered in each case to determine whether fair use is applicable or not.

Fair Use in Online Courses
The following limitations are applicable to the Fair Use of materials in on-line credit or noncredit courses:

Limitations of Access
Access to copyrighted materials for a course must be limited to students registered for that course. Transmission must utilize a closed, secure system with limitations on access to the class materials by means of a password, PIN number or other means of identification. Further, students must be advised that they are not permitted to make or distribute copies of the materials.

Limitations of Duration
The materials may be accessible for a period no greater than the duration of the course. When the course ends, transmission of the materials should cease and student access should be deactivated.

Limitations of the Size of the Reproduced Work
The amount and substantiality of the portion of the copyrighted work reproduced should be limited. Unfortunately no simple rule of thumb is applicable to all situations. The factors listed above need to be applied in a reasonable manner. Copyrighted materials used without permission should be used sparingly. Depending on the size of the work, generally the use of up to 10% of the work as a whole is permissible in a class situation.

General rules governing Fair Use
The following rules apply in all Fair Use situations:

  1. Fair Use does not permit repeated uses of copyrighted materials. Permission should be obtained wherever practicable and is required for repeated use by the same instructor for the same course.
  2. Fair Use only applies in situations where the original work from which the reproduced copy is made is itself a legally obtained copy of the work.
  3. Reproductions should include any copyright notice that is on the original and should include appropriate citations and attributions to the original source.

Individuals who have questions regarding the applicability of fair use to particular situations should seek legal counsel.

NSG
10/7/99