Fair use is an exception to the rights of copyright holders which allow the public to make limited uses of copyrighted works. The statute can be defined a limited right to use copyrighted works without the copyright holder's consent, usually under confined circumstances, for purposes such as education, research, news reporting, criticism, and commentary. Due to the nature of these specific pursuits, fair use is a legal incentive for the advancement of knowledge and the communication of ideas. However, fair use does not allow all uses. This section of the guide explains the fair use statute, the meaning, and limitations.
Fair use is the most important exception to the rights of copyright holders in terms of education and research purposes. Fair use is what allows researchers and academics to quote one another's work in their own work, advancing knowledge. Fair use is flexible and adaptable to many unpredictable situations that can occur in education and academia. Fair use can take on new meanings for each set of circumstances. The flexibility of the law makes the statute confusing and it can be difficult to apply, but the flexibility is one of the prized aspects of the law. Congress deliberately made the fair use statute flexible with no exact parameters, which allows fair use to be applied to each new use of copyrighted works.
Rather than define exact parameters, the fair use statute has four factors that are used more as guides. Section 107 of the US Copyright Act designates the four factors to be used to evaluate and balance in a fair use analysis.
17 US Code 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that sections, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a commercial nature or is nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Fair use is a balancing test. All four factors need to be evaluated and apply to a use, but not all of them need to be satisfied in order for a use to be fair. The question is whether a use overall leans in favor of or against fair use.
Fair use is highly fact-sensitive. Each situation has its own facts, the meaning and application of the factors will depend on the facts in each use. Anytime a situation is new or changed, the factors need to be evaluated.
Don't reach hasty conclusions. Fair use requires all four factors to be evaluated. Just because the work is to be used for education or scholarly objectives does not necessarily mean that the use is fair.
If the use is not "fair," don't forget the other statutory exceptions to the rights of copyright holders. Fair use and other copyright exceptions operate independently of one another. Compliance with only one exception makes a use lawful.
If the use is not within any exception, permission from the copyright holder is an option. Unless plans are changed to use another work, the only option may be to seek permission. Introduction to the Permissions Process: https://fairuse.stanford.edu/overview/introduction/
Fair use is only relevant if the work is protected by copyright. A work may very well be in the public domain, in which case copyright and fair use do not apply.
A nonprofit educational purpose is more likely to support a fair use claim than a commercial use. Fair use is of utmost importance with the expansion of electronic reserves and course management systems such as Blackboard. Instructors can easily create files of readings and posting full text of articles, chapters, and additional materials. If the materials are directly related to the course, and they are posted by the instructor or as directed by the instructor, and the materials are limited to those enrolled in the course with password protection, the claim of an educational purpose is strong.
However, keep in mind that this is just one factor; although your use may be supported by this factor, the other three factors may outweigh the fair use.
Transformative uses are a key component to the purpose and character of the use. A transformative use may occur when the work is altered or transformed into something, a common example is a parody of a song. Transformative uses that are commonly used in the classroom are when the work is used in a new manner or context, distinct from the intended uses of the original. There are many materials used for educational purposes that were not created for such purposes. For example, an art history class transforms works that were created for aesthetic reasons into objects of academic analysis. Additionally, as congress specified commentary as a fair use, pieces of a work may be mixed into a multimedia project with additional commentary and can be considered for teaching purposes.
Uses of factual, nonfiction works are more likely to be within fair use, while fair use applies more narrowly to creative works. This is due to the purpose of copyright law: to allow for the growth of knowledge. To build on knowledge, we need to use earlier works of nonfiction. Another purpose of copyright is to protect, reward, and encourage creativity, thus fiction works are greatly protected by copyright law. Again, nature is only one factor, so just because the work may be a work of fiction, or another creative work such as art, photography, music, or a motion picture, does not necessarily mean that your use is not fair. Depending on the strength of arguments for the other three factors, a use of a creative work may still be considered a fair use.
This factor may be considered the most confusing factor, especially because "amount" seems straightforward. However, if we remember, Congress made Fair Use flexible, so there is no correct amount such as word count, page count, number of chapters, percentage, etc. The appropriate amount can depend on the first factor, purpose, as well as the second factor, nature.
The difficulty of the amount used is partially due to the matter of whether a substantial part of the entire work is utilized. The idea is that if the use is the "heart of the work" it is less likely to be considered fair. Shorter excerpts are more likely to be considered within fair use. However, depending on the work, the smallest piece of a work could be considered the "heart of the work." This is why this factor is difficult and confusing for so many users. This is also why the other factors must be considered: if the use can be strongly tied to an educational or research purpose, it is more likely to be considered fair.
This "effect" factor considers whether the use of a copyrighted work harms the market for the work or its value. Typically, the question is whether the use would replace what could have been a sale of the work or a license to use it. Photocopying and distributing an entire textbook would definitely be considered harmful to the market, as students otherwise would have purchased a copy of the book. This factor becomes more complex with licensing of works. Photocopying a particular article in an issue wouldn't replace the cost of subscribing to the entire journal, however the copying could interfere with the system of permissions and collection of fees put in place by the publisher or other copyright holder.
Transformative uses are important to the fourth factor in that the more a work is transformed in order to be used, the less likely there is an interference with the market. Moving pieces, or using smaller pieces of a work, and putting them into a new context of a study for educational purposes is not likely to interfere with the market. The more you alter the context of use and add original criticism or comment to the work, the less likely you are impeding on the market.
The fourth factor relates to the first factor, purpose. If the purpose of the use is for research or scholarship, market harm may be less likely. It can even be argued that use of a work may even contribute to the market, if a researcher quotes or includes excerpts from a work, another reader or researcher may seek out the original work. The fourth factor also relates to the second factor, nature. If a work is unpublished, using a work may not be considered fair until the rightsholder has a chance to publish the work and gain money. Using an unpublished work has been argued to be an unfair use in that it may replace future sales of the unpublished work.
The Fair Use Statute was given deliberate flexibility by Congress which can be frustrating or freeing, depending on the situation. Some have found the flexibility complex because there is no absolute amount one can use in order to be "fair." Many have created or adopted the use of "guidelines" in order to play fair; the problem, however, is that none of the guidelines are legal. Thus, users should base their decision on the four factors, rather than any guidelines. The law's flexibility is important in enabling fair use to promote academic progress and scholarship generally. Accepting the flexibility allows important protections for educators. Educators should act in good faith, by learning the law and applying it. The only way to apply the law is to work with the four factors of the statute. Resources listed on this page include the following: help identifying if a use of a work protected by copyright is fair, more information on copyright and fair use, resources that are free to use such as works in the public domain or licensed with a creative commons license.
Best practices and steps to remember when using works:
Caveat: If there is a contract or license governing use of material, contract law trumps copyright law. Follow the restrictions of the license when using material from a licensed product like a library database.
This guide was created using many resources, many of them are linked throughout the guide. This guide was also built using information from: Crews, K. D. (2012). Copyright law for librarians and educators. Chicago: American Library Association.
