The courseware materials will not be composed entirely of newly created works. The faculty member plans to incorporate some text and graphic illustrations from a 1990 textbook, some background music and a short segment from a commercial documentary, an article written by one of her students two years ago, numerous photographs downloaded from websites and dozens of archival photographs from the university's special geology collection. She plans to modify some of the images before incorporating them.
The fair use statute does not give educators a blanket exemption from copyright law. Educators, like everyone else, must keep their uses of others' works within certain bounds. Each item to be included should be evaluated separately, except where there are many items from the same source. In that case, the items from the same source should be evaluated together as to the amount that will be used.
The fair use statute offers general guidance and requires that the faculty member use a weighing and balancing test to determine the likelihood that a particular use will be fair. As a result, it tends to be subjective and open to differing opinions as to the results in any case. This makes some people a bit nervous, because it's not "for sure." Still, it is not that difficult to do, and faculty members should learn to use it. We offer guidance to get you started in Using the Four Factor Fair Use Test.
Before using the fair use test, the faculty member may wish to see whether a particular proposed use might fit within our Rules of Thumb for Multimedia. These are a set of guidelines that suggest safe amounts of others' works to include. If her use does not fit within the Rules of Thumb, that does not mean she can't use the materials. Instead, she should proceed with the fair use test. The Rules of Thumb describe a certain subset of the whole of fair use that many people regard as pretty safe, but, they are not the limit of fair use.
Exceeding fair use does not mean she can't use the materials - rather, it means that she needs to get a license from the copyright holder, or in common terminology, get permission. Even if we take full advantage of the fair use statute, there are times when a particular use is pedagogically important even if it is more than what may be a fair use.
The public domain is a rich resource for all authors to use freely. Any work published in 1922 or earlier is in the public domain. Works published between 1923 and 1989 without a copyright mark (©) are also in the public domain, with a few exceptions. Works authored by employees of the federal government are also in the public domain, as are works published between 1923 and 1964, if renewal terms were not exercised. Read "Fair Use of Copyrighted Materials" for a more detailed explanation of what's in the public domain.
University employees, including faculty members, can be held personally liable for their infringing acts. In all likelihood, a copyright owner would sue the University too, but that will not necessarily insulate her from the cost of defending a lawsuit or from personal liability if she's found to have infringed.
The penalties for infringement are very harsh: the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that she knew she was infringing and did it anyway. Ignorance of the law, though, is no excuse. If she doesn't know she is infringing, she still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees...
There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if she followed the University's Copyright Policy! If she qualifies for this defense, she'll be a very poor prospect for a lawsuit. On the other hand, if she disregards sound advice about fair use, a court would be free to award the highest level of damages available. This would make her a handsome target.
Finally, state Universities may claim sovereign immunity to shield them from suits for money damages. Individuals sued in their individual capacity cannot claim sovereign immunity but may qualify for a more limited immunity, but only where their activities are within the bounds of a Copyright Policy or otherwise defensible as a fair use. Where a faculty member's conduct violates a Copyright Policy, qualified immunity may not be available and the individual would be liable for money damages. See University Liability for Faculty Infringements for more information about University and individual liability.