A Guide to... Copyright, Fair Use, and Licensing: Copyright & Fair Use

Section 107 of the Copyright Act provides the four factors for determining if something is fair use. Think of these four factors as a sort of check list to determine fair use for yourself.

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Fair use covers more of a copyrighted work if the use of that quoted/reproduced work is for an educational or nonprofit purpose than a commercial one. In addition, "transformative" uses of copyrighted work are more likely to be considered as fair use because it uses a work to create something new, with a further purpose or different character than the original. A work is only considered transformative if it does not act as a substitute for the original use of the work.
2. Nature of the copyrighted work: This factor takes into account the characteristics of the copyrighted work, and how that relates to what is considered a fair amount to reproduce or quote from it. Works of creative expression are protected more strictly than non fiction under this factor because copyright does not allow you to infringe upon someone else's art. Unpublished works, like correspondence or unfinished creative works, are even less likely to be considered fair use because they were never intended for public consumption.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: While there is no set limit per say on how much of a work you can reproduce or use in your own material, generally the more of a work you use the less likely it is to be considered fair use. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work. Basically you should not be giving away the bulk of a copyrighted work's content within your own use of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work: Similar to above, your use of a copyrighted work should not negatively impact the market value of the original work. This can mean not over using the work, like quoting too much or quoting the main point of the original work, but it can also mean misrepresenting the work or using it in a way that discourages purchase of the original material. 

Additional Resources for Fair Use Factors

The term “public domain” refers to creative works that are not protected by copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. There are a few ways that creative works come to be in the public domain:

1. The original copyright has expired. As of 2024, works published in 1928 have now come to the public domain. For works published after 1977, the copyright will not expire until 70 years after the creator's or last surviving creator's death.
2. The copyright owner failed to follow copyright renewal rules.
3. The copyright owner deliberately placed their work in the public domain, known as "dedication."
4. Copyright law does not protect this type of work. 

Providing copies of resources to students and other Holy Cross Community Members

Electronic Resources

The library holds licenses for the articles, ebooks, and other electronic resources it provides access to.  All College of the Holy Cross students, faculty, and staff are included in the library’s licensed resources.  Licensing and the rules under Copyright Fair Use dictate the way in which access can be given to these resources.  This is particularly important for faculty providing access to students for class use.

Student Use in Courses:

For providing students access to licensed articles, ebooks, or other electronic resources in classes or on Canvas (course management system):

Best practice: Provide students with a link to the article, ebook or ebook chapter, database or streaming media resource. Do not upload or distribute a PDF.  Distribution of a PDF or an equivalent “copy” through email or posting on a course management system is illegal and/or violates the terms of our license agreement. 

Staff Continuing Education or Other Programs:  

For faculty/staff workshops, professional development, or other continuing education programs: 

Best practice: provide staff with a link to the article, ebook or ebook chapter, database or streaming media resource. Do not upload or distribute a PDF.  Distribution of a PDF or an equivalent “copy” through email or posting on a course management system is illegal and/or violates the terms of our license agreement. 

Sending copyrighted works to colleagues outside of Holy Cross:

Best Practice: Providing a link to the resource through the library catalog will not work because non Holy Cross community members do not have the appropriate access. In this case, it is best to provide a full citation of the resource you wish to share so that your colleague can use that information to track down the resource through their own institution's library. 

Print Resources

Example: using a book chapter that is not electronically available, but has been scanned from a text.  There are two options to make a print resource available to students, faculty, or staff:

1.    Pay for copyright clearance for that book chapter so copies can be distributed electronically.

2.    Put the print copy of the book on Reserve at the Dinand Library.  If you own a copy of the book (and the library does not) you can put your own copy on reserve at the library. Once on reserve, each person can come to the library and scan/print the chapter of the book. This is allowable under Copyright Fair Use since individuals are allowed to make a copy for their own use.

NOTE:  If the book, article, or resource was obtained through Inter-Library Loan, it cannot be made available/distributed to students or other faculty/staff.  If you would like to make the resource available for student use in a course, please reach out to your library liaison to consider it for library purchase.

What if I am the author of an article, and I want to use it for a course reading?

Being able to distribute PDF copies of the article are governed by the contract that you, the author, signed with the publisher. Usually, pre-publication prints are allowed to be added to an Institutional Repository and the author is granted that some (e.g "up to 5") copies can be distributed in PDF at the author's discretion.  Please refer to your publisher’s contract. 

If the library databases provide access to the article, the best practice is to provide a link to the students so they access the article on their own.

See our guide about Digital Scholarship for more information on adding your published work to our Institutional Repository.