Exceptions & Defenses to Copyright Infringement

Last Updated: 06/14/2021 13:23

Three Exceptions

You generally need to obtain a license (i.e., explicit written permission) to use a third party's copyrighted material.  There are three major exceptions to this rule: (1) the face-to-face instruction exception, (2) the online instruction exception (also known as the TEACH Act), and (3) the fair use exception.   These exceptions are defenses against a claim of copyright infringement.  Exceptions act like an umbrella, under which your use of the copyrighted work is protected.  In other words, you will be able to use the copyrighted material without the owner or licensor's permission, but only under certain circumstances.

Before considering reliance upon any of these defenses, we recommend first considering the following safe alternatives:

  1. Public Domain / Open Access - Is your asset in the public domain or is it made available via open licensing terms?  Creative works which were first published prior to 1924 are usually considered part of the public domain and are free to use.
  2. Licensing - Have you inquired to see if the UNT Libraries have a license to the asset, or have you attempted to purchase a copy of the work or a license for its use on your own?
  3. Alternatives - Have you explored our Usable Works page to search some of the web sites listed there (like Pixabay.com) for comparable assets that are unrestricted in their use?

Once you have fully exhausted all the above options, then the next step is to explore the first two exceptions.  These are listed below.  Only as a last resort should the fair use exception be relied upon.  Fair use is detailed last on this web page.

If you have any questions about any of the following please reach out to the CLEAR compliance team here.

green and white striped umbrella

Face-to-Face Instruction Exception

Copyright law1 permits the performance or display of legally licensed/purchased works, for strictly and directly pedagogical purposes relevant to the course, in face-to-face classes at nonprofit, accredited schools.  Such works include the showing of a film, playing music, performing a play, projecting images, and other types of performances and displays of copyrighted works in the classroom, as long as the work was lawfully acquired.

TEACH Act - Online/Distance Instruction Exception

The "TEACH Act,"2 permits uses of copyrighted works in online classes, but only under certain circumstances. To determine if your intended use would qualify, please refer to the TEACH Act Compliance Checklist (PDF).

One of the requirements of the TEACH Act is the inclusion of a copyright statement in your course which is available to all your students.  To meet this need we have an example copyright statement. We recommend its inclusion in every online course.

Fair Use Exception

When a proposed use of a third-party copyrighted work is not permitted by license and does not fall within one of the specific exceptions (e.g., works in the public domain), use may still be permitted under the fair use doctrine.  At the University of North Texas, instructors are responsible for making their own fair use examinations when choosing the amount of materials to use in their courses.

Why does UNT take this approach?

  • These best practices support instructors' academic freedom in the development of course materials.
  • Instructors are best informed and situated about how important elements of the fair use analysis apply to their specific uses of third-party copyrighted material.  This includes the amount of the material used, its centrality to the original work, and the potential market for the work.

Some instructors may find the idea of making a fair use evaluation intimidating or frustrating. Please rest assured that you can learn the basics of fair use, and we are here to support you every step of the way!

Fair Use Factors

The Fair Use Factors

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
    • Nonprofit educational uses, including using a copyrighted work for scholarly criticism or commentary, making copies for face-to-face classroom use, repurposing a copyrighted work for class material, will tip the balance in favor of fair use.
    • The more the purpose and character of your use differs from the original nature of the copyrighted work, such as creating a parody, using the work in a new way to fit class material…etc., the more this factor will tend to favor fair use. 
    • Digitization of works to provide access to the print disabled, to enable indexing, and to enable ‘non-consumptive research’ (e.g. text mining) will likely tip the balance in favor of fair use.
    • Use of copyrighted works for direct pedagogical purposes strengthens a fair use argument.
    • Use of copyrighted works, such as images or video, for decoration in an online course with no transformative purpose will likely undermine a fair use argument.
  2. The nature of the copyrighted work.
    • Use of a published work is more likely to be considered fair than use of an unpublished work.
    • Use of factual or non-fiction-based work tends to tip the balance in favor of fair use, whereas the use of highly creative work (such as art, music, novels, and films) tends to tip the balance against fair use.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
    • Minimal copying of small amounts of larger works, such as a few pages from a book, will favor fair use when they are truly excerpts and do not serve as replacements for the original works.
    • Lower percentages of an excerpt copied (e.g., under 10%) favor fair use. In other words, the smaller the amount, the better!
    • BUT copying of a quantitatively small portion of a work can weigh against fair use if the portion used is the “heart of” the work. For example, if you copy pages from a book which contain content so important as to nullify anyone’s need to buy the book, this would weaken fair use (note that this affects Factor Four below). If the portion used is not central or significant to the entire work, it will likely favor fair use.
    • The extent of permissible copying under fair use varies with the purpose and character of the use. For example, a transformative use of a whole work, i.e. parody or scholarly criticism, might weigh in favor of fair use if the amount is appropriate for the purpose.
    • Copying an entire work may be permissible, if necessary, to make the work accessible to people with disabilities.
    • Please note:
      • Use of unlicensed commercial ‘stock’ images in a course is discouraged.  Commercial ‘stock’ images are photographs or illustrations that are being sold through a vendor web site, such as Getty Images, iStock, Adobe Stock, and the like.  Learn where to find images that are free to use, and how to check any images you aren’t sure about.
      • Copying of journal articles, in their entirety, into an online course may violate the licensing terms which govern the UNT Libraries’ subscriptions to online journals and databases.  A great alternative is linking out directly to the article in the UNT Libraries’ electronic resources. Your subject librarian can assist you with this process!
  4. The effect of the use upon the potential market for or value of the copyrighted work.
    • The first three factors affect the analysis of this factor. For example, if the proposed use is for educational purpose and the amount used is appropriate, the use may likely not have a significant effect on the market or value of the work.
    • If the use is transformative and the amount of use is small, the fourth factor will tip in favor of fair use.
    • Courts will look at whether the use would damage or negate the potential market for the original work. With respect to impact on potential licensing revenue, courts look at “traditional, reasonable, or likely to be developed markets.” If the use would significantly impair a market or potential market, it will undermine a fair use argument.
    • Some courts consider whether licensing of content is easily accessible, reasonably priced, and available for the portion and format we seek to use. If a license is readily available for the portion of the use, it may undermine a fair use argument.

Attribution

Generally, attributing a work to the rightful owner is recommended as a matter of academic ethics, and doing so demonstrates our good faith. In some cases, attribution may be required by the terms of a Creative Commons license. Learn more about Open Access Creative Commons licenses, and how to attribute Creative Commons works.

When Fair Use Does Not Apply

When a proposed use of copyright material does not fall within the fair use doctrine or another copyright exception, then written permission, such as a license agreement, from the copyright owner is required to engage in use.

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1 - 17 U.S.C. § 110(1).
2 - 17 U.S.C. § 110(2).

Copyright Guide