Fair Use Policy

Definition:This document explains the principles underlying all decisions regarding copyright to be made on the CSUSM campus.
Authority:
Scope:The Fair Use policy applies to teaching faculty, staff, and library faculty to resolve fair-use questions in a good faith and well-informed manner.
Responsible Division:Academic Affairs
Approval Date:05/19/2000
Implementation Date:05/19/2000
Originally Implemented:05/19/2000
Signature Page/PDF:View Signatures for Fair Use Policy Policy


Procedure

California State University San Marcos
Policy on Fair Use of Copyrighted Works for Education and Research

Statement of Supporting Principles
Prepared by the LAC Subcommittee on Copyright Issues

Chuck Allen, Bonnie Biggs, Renée R. Curry, and Dawn Schmid

March 7, 1999

This document explains the principles underlying all decisions regarding copyright to be made on this campus. Please note, however, that this document is not intended to be a tutorial about copyright and fair use. It should accompany the C.E.T.U.S. document, Fair Use of Copyrighted Works (1995), and a comprehensive education program must follow adoption of these principles.

Principle 1: An appropriate exercise of fair use depends on a case-by-case application and balancing of four factors as set forth in a statute enacted by Congress. A proper determination of fair use in daily practice and in the courts requires applying these four factors to the specific circumstances of the use:

  • The purpose or character of the use;
  • The nature of the copyrighted work being used;
  • The amount and substantiality of the work being used; and
The effect of the use on the market for or value of the original.These factors must be evaluated to determine whether most of them weigh in favor of or against fair use.

Principle 2: Nonprofit educational purposes are generally favored in the application of the four factors, and a robust concept of fair use is crucial for advancing education and research. The educational purpose will usually weigh the first factor strongly in favor of fair use. Keep in mind, however, that a nonprofit educational purpose does not by itself make the use "fair." One must always consider and weigh all four factors together.

Principle 3: Responsible decision making means that individuals within the university must know the fundamentals of fair use and understand how to apply them in typical situations. To that end, LACAC (LAC's designation as of the 1999-2000 academic calendar) and the Copyright Guidance Council will provide information, answer questions, and conduct training in an effort to prepare teaching faculty, staff, and library faculty to resolve fair-use questions in a good faith and well-informed manner.

Principle 4: The university is confident that its teaching faculty, staff, and library faculty are able to make good faith decisions about fair use and that their decisions will best reflect the particular circumstances relevant to the decisions. Fair use depends on the facts and circumstances of the given situation. Therefore, the person closest to those facts is likely best suited to determine the law's application. Thus, we do not mandate a particular decision, but instead we call on each member of the university to be responsible for the fair-use determinations with respect to the projects within their authority. The Copyright Guidance Council will be available to assist with decisions.

Principle 5: Reasonable people-even those with significant legal expertise-can and will differ in their understanding of fair use. Copyright law rarely offers a definitive meaning of fair use for any specific application. Thus, the real meaning of fair use depends on a reasonable and responsible application of the four factors. One person's judgment and situation may not match the next, and the differences may be based on variations in facts and circumstances. The Copyright Guidance Council will help individuals to determine, based on precedence at our university, the unique qualities of particular cases.

Principle 6: Because of the flexible and interpretive nature of fair use, Congress provided significant protection for educators. Not only does the law apply particularly to educational purposes, but it also limits the monetary liability that educators may potentially face, as long as they hold a reasonable and good faith belief that their activities are fair use in light of the four factors.

Principle 7: Through educational efforts, the university should move over time toward common understandings of fair use for local needs, but such detailed interpretations ought not be a part of a formal policy statement. By keeping the policy itself concise, the university preserves the flexibility inherent in fair use law and preserves the opportunity to respond to a changing law and the changing demands of education and research.

Principle 8: Fair use is not determined by "guidelines" that purport to quantify the boundaries of fair use. In an attempt to clarify the meaning of fair use for common situations, various private parties have negotiated "guidelines," but those externally developed guidelines are often inappropriate for the realistic application of fair use to higher education. Such guidelines are too often an unduly narrow or rigid definition of fair use, and they usually impose additional restrictions and conditions that are not part of the law. No such guideline has been read into the law by Congress or the courts, and the guidelines are not binding. Fair use must be determined according to the circumstances of each situation.

Principle 9: If a member of the CSUSM community acts in good faith and consistent with his or her university duties, protection may be offered by the CSU Risk Management Authority in the event of an infringement allegation. Good faith increases the likelihood that activities are in fact fair use. Good faith reduces the risks of liability in the event of infringement. Good faith is also important for securing the benefit of university assistance and support in the event that its teaching faculty, library faculty, and staff may face infringement allegations, in accordance with the Errors and Omissions Liability Insurance, dated 1998-1999. Ultimately, good faith is best manifested through knowledge of, and reasonable application of, the four factors. In order to be certain that all members of the CSUSM community act with the knowledge that best facilitates good faith, attendance at education sessions will be mandated by the CSUSM Vice President for Academic Affairs. Signatures of attendance will be kept on file should the need to protect individuals against infringement arise.