Fair Use by Monica Aebly
This article is not a source of legal advice or assistance.
Copyright protection begins as soon as an “original work of authorship” is “fixed in a tangible medium of expression”. An original work can be a journal article, a photograph, a sound recording, or even an email message. Publication and/or registration of the work is not required to activate copyright protection. So, how can copyrighted material be used in teaching and scholarship? Fair use to the rescue!
The Copyright Act has always tried to balance incentives for creativity through author rights with the need for the free and open use of information for the purpose of a thriving democracy.
Four factors to be considered
In 1976 Congress approved several revisions to the Copyright Act, including Sec. 107 – Fair use. The U.S. Code, Title 17; Section 107- Fair Use, states: “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 in that section, 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—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- the nature of the copyrighted work.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
These factors are often referred to as the “four factors of fair use”. They provide general guidelines for evaluating whether a use will weigh for or against fair use. Congress intentionally chose not to establish strict boundaries to fair use and instead passed into law the factors that the courts had come to rely upon. While only a court of law can definitively rule on whether a use is fair or not, Sec 107 empowers the user to evaluate if their use favors fair use.
For factor number one, most of us will be using material for nonprofit educational purposes. However, just because a use takes place on a university campus does not make it fair use. An educational use can also be commercial, such as a faculty member developing a textbook. Educational use alone does not support fair use. You must weigh all four factors.
Factor number two considers the type of work, whether it is artistic or factual. If the material you want to use is objective data and facts, those data and facts could be considered to be in the public domain and that would weigh in favor of fair use. Original creative works such as fiction, poetry, photographs, and cartoons weigh against fair use.
Factor number three is both qualitative and quantitative – do you intend to use a small portion of the work or the entire work? Do you want to use the “heart” of the work? Using one book chapter, one journal article, one poem, or one photograph from a work would weigh in favor of fair use. Using multiple chapters, articles, etc. from a work would weigh against fair use. Using even a small portion of a work if it is the “heart” of the work weighs against fair use.
The fourth factor, effect on the market, appears to be the most discussed by the courts, even though Congress intended that none of the four factors weigh more heavily than the others. If you would like to use a work that you normally would have purchased or licensed this would weigh against fair use. Any use that would potentially reduce profits, damage or put the market for the work at jeopardy weighs against fair use. Using these four factors for evaluation can help you determine if material you want to hand out in class, put in an LMS, or use in your presentation meets fair use or if permission from the copyright owner is needed. In determining whether a use is fair or not, always keep in mind that you must apply all four factors. Don’t jump to a conclusion based simply on one, such as whether your use is educational or commercial. You still need to evaluate, apply, and weigh the balance of the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work. Not all factors need to weigh either for or against fair use, but overall the factors will usually lean one direction or the other. Your analysis should guide you to a conclusion. Keep a record of your fair use evaluation on file.
Consider statutory damages
Another reason to understand fair use is that it remits statutory damages if the infringer honestly believes that their use was a fair use and they were acting in the scope as an employee of a nonprofit educational institution, library, or archives. Section 504(c)(2) of the Copyright Act of 1976 states “The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment…”.
Finally, keep in mind that even if your use does not fit fair use, it may fall under other statutory limitations of exclusive rights such as the library exemption, Section 108, or you can request permission from the copyright owner.
Some useful related links
Brigham Young University has a good copyright tutorial on Fair Use
Stanford University’s Fair Use overview
University of Texas System’s Fair Use of copyrighted material
FAIR USE EVALUATORS
The Copyright Advisory Network, sponsored by the American Library Association (ALA), has an online tool for Fair Use Evaluation
University of Minnesota Libraries Fair Use Analysis Tool
Columbia University Libraries Copyright Advisory Office Fair Use checklist