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Fair Use Guidelines for Closed Online Classrooms: Applying Fair Use

This guide provides information on how to assess fair use for inclusion of materials in a course that is only available to students enrolled in the course (closed online classroom). It also provides links to helpful resources on open educational resources

Making a Fair Use Evaluation

This specific page is to help you make a fair use evaluation when using a copyrighted educational resource. The most common resource used is an academic textbook, so the example given below uses a textbook to illustrate its fairness or lack of fairness. 

For a general review of the four factors of fair use (purpose, nature, amount, and potential market harm), please see this PDF overview.

Incorporating a Single Chapter from a Textbook

If you wish to place a single chapter on reserve for your students through Canvas, Virginia Tech University Libraries has a policy which allows you to place the photocopied individual chapter on reserve. Visit Copyright Policy for Reserves: Photocopied Articles and Book Chapters page for more details. 

Relying on Fair Use when Incorporating Textbooks

(and other copyrighted educational materials)

U.S. copyright lawsuits have historically sided in favor of educational uses. However, this does not automatically give educators a free pass to use whatever they want and as much as they want when uploading copyrighted materials to online learning management systems, such as Canvas. What this generally means is that instructors can use limited and reasonable portions* of educational materials (e.g., textbooks) for the purposes of completing their educational objectives. 

Questions to Ask

Consider the following when making a fair use evaluation of copyrighted educational materials / textbooks:

  • Is there a realistic alternative for your use that is available openly or at the library (e.g., a licensed e-book)?
  • If not, consider whether you can use portions* of the textbook (scanned and uploaded) in addition to alternatives to build a cohesive collection of materials (e.g., open, library-licensed, and reasonable portions of copyrighted materials) to meet your learning objectives.
  • If neither of the options above is feasible, then make a fair use evaluation of copying portions of the textbook for inclusion on Canvas. See the scenario below for a typical example of how an instructor can make a fair and reasonable decision. 

Typical Scenario

Let's look at a typical scenario of an instructor who wants to use a specific textbook in her course. There are no electronic alternatives, such as an openly licensed resource or a library-licensed e-resource she could use to realistically replace portions of or the entire textbook for her course. This textbook is really the only resource that works for this instructor for this specific course. Unfortunately, due to the pandemic, course reserves have restricted access, since all books must be quarantined for three days after being checked in, so the instructor is worried about students having access to the textbook. Therefore, she has decided to rely on fair use to incorporate the textbook into her course on Canvas. She evaluates the four factors: 

  • Purpose of the use
    • The instructor feels she is highly in favor of this factor, since the use is educational. The use is also socially beneficial, since it promotes learning.
    • The instructor walks back some of her confidence, however, because she realizes she is simply duplicating the original work and not adding any of her own originality to the work. Her purpose is essentially replacing the original purpose of the copyrighted work.
    • She feels 50/50 on this factor now.
  • Nature of the copyrighted work
    • This professor is in the sciences, so most of the textbook she is using is highly factual in nature. 
    • However, the work also has many high-definition images, graphs, and formatting. 
    • She feels about 50/50 on this factor as well.
  • Amount or substantiality of the work being used*
    • Ideally, the professor would like to upload the entire textbook to Canvas to help save her students money. However, she knows that this would greatly offset her argument for fair use. 
    • She decides to move on to the next factor before making a decision about this one.
  • Potential market effect (or harm)
    • If the professor used the entire textbook, all the students in the course would not buy the textbook. This would harm the publisher's market for the work. 
    • The professor decides she can use limited portions and not affect the market of the work, since she will be using more sections and chapters from the book than what she plans to scan and make available to her students. 
      • Ultimately, she decides to scan and upload two chapters and a section from another chapter, which makes up a very limited portion of the entire textbook and a limited portion of the content from the textbook she is going to use in the course.
      • If students need to use the reserves, they can still check out the book on a limited basis.

Please note that all information provided here is merely information and does not substitute as legal advice. 

*Note: "Reasonable portions" is not a defined amount. A portion should be the portion you need to complete your objective without affecting the market of the original copyrighted work (i.e., not merely duplicating the original work and its purpose). In some lawsuits, such as the fair use case involving the biography of President Ford, a small portion was used, but it was considered to be the "heart of the work" and thus affected or harmed the market for the original work (i.e., people read the portion published in TIME magazine about Ford's pardon of Nixon, and thus, it was determined that there were fewer sales of the book). 

Tools to Help Make Fair Use Evaluations