Copyright: Fair Use

Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107)

The Four Factors

The following four factors are used to determine if a use is fair:

1. The purpose of the use (eg. commercial vs. educational)*
2. The nature of the copyrighted work
3. The amount of the material used (the greater the amount copied, the less likely it is fair use)
4. The effect of use on the potential market for or value of the work

* Not all uses in an academic context are automatically considered fair use!

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. Fair use is both an extraordinary opportunity for academics and an ongoing source of confusion.The complexity of fair use and its importance in academia make it imperative that we understand how to make judgments concerning fair use.

The fair use statute does not define exact parameters; instead it sets guidelines. The four factors of purpose, nature, amount, and effect are intended to be analyzed and balanced in determining fair use. In short, fair use is risk analysis. There are a few useful and practical principles which can be employed to help in determining fair use:

• Fair use is a balancing test. You need to evaluate and apply the four factors, but it is not necessary to satisfy all of them for the use to be fair.
   
• Fair use is highly fact-sensitive. The application and meaning of the four factors are totally dependent upon the specific facts of each situation. It is necessary to reevaluate the factors each time you face a new or changed situation.
   
• Don't be hasty in your conclusions. Don't assume you are within fair use merely because your use is nonprofit and educational with scholarly objectives. There are more factors to consider. Also commercial use could be within fair use depending upon the other factors.
   
• Don't forget the other statutory exemptions to copyright. If your use is not "fair," another exemption may apply. All exceptions to copyright including fair use apply independently of one another. You only need to comply with one to make your use legal.
   
• If you can't apply any exception ask permission. Asking permission is always a viable option. Unless you change your planned use to comply with fair use you will have little choice but to ask permission.
   
• Consider the public domain or creative commons. Fair use apples only to works protected by copyright. The work you wish to use or a similar one may be in the public domain; if it is not protected by copyright you need not worry about fair use. Similarly, the work or similar work may have a creative commons license allowing you to use the work.

Reviewing these common scenarios can help you determine whether or not fair use is appropriate. Using an available Fair Use Checklist can help you to focus on factual circumstances important to your evaluation of fair use. Remember the meaning and scope of fair use is dependent on the particular facts of a given situation. Changing one or more facts can alter the analysis.  Additionally, the checklist is an important mechanism in documenting your decision-making process.  Maintaining a record of your analysis is critical for establishing good faith. You should add the checklist to the notes about your project and keep them for future reference.

The ALA (American Library Association) also provides an online Fair Use Evaluator. This tool is designed to help you better understand how to determine fairness of use by collecting, organizing, and archiving the information needed to support a claim of fair use. This tool will provide you with a time-stamped document for your records and access to educational materials and copyright resources.

Fair Use Cases:

Best Practices for Fair Use:
Professional communities are beginning to issue best practices for interpreting Fair Use. Some of these are: