About Fair Use
Section 107 of the Copyright Act limits the exclusive rights of copyright holders by allowing others to use copyrighted work (in most cases a portion of that work) for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. There are four factors that need to be considered when evaluating whether a particular use is fair under this doctrine. It is generally understood that these factors are seen as guidelines and not exact rules; they are considered the minimum and not the maximum standards of fair use in an educational environment. The factors are listed below along with some interpretation about their application.
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- Nonprofit educational and noncommercial uses are more likely (but not always) to be considered fair.
- It is import to weigh the purpose and character of the use against the other factors.
- Transformative uses (i.e. uses that alter a work with regard to its originally intended purpose or character) are more likely to be considered fair.
- Nature of the copyrighted work
- Copyrighted works that are factual in nature are more likely to be considered fair use than creative ones.
- An example of the inappropriate use of copyrighted material would be the reproduction (without permission of the copyright holder) of educational material that is intended (nature of work) to be purchased by students for a course (textbook, lab manual, etc.).
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The purpose of this factor is to encourage use equal to what is needed to achieve your intended purpose. For teaching, a good rule of thumb is to use only what is necessary for purpose of your instruction.
- In some cases, one might justify the use of an entire work to be fair.
- In other cases, the use of a small amount of a copyrighted work may be considered unfair because the selection embodies the most important part or “heart” of the work.
- Effect of the use upon the potential market for or value of the copyrighted work
- Use that could potentially hurt the current market for the copyrighted work and/or cause substantial harm if it were to become widespread.
U.S. Copyright Office (December 2016). "Subject Matter and Scope of Copyright. Limitations on exclusive rights: Fair use," in Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code (chapter 1, section 107). Retrieved from https://www.copyright.gov/title17/92chap1.html#107
U.S. Copyright Office (January 2017). "More Information on Fair Use," in U.S. Copyright Office Fair Use Index. Retrieved from https://www.copyright.gov/fair-use/more-info.html
U.S. Copyright Office (August 2014). Reproduction of Copyrighted Works by Educators and Librarians. Retrieved from https://www.copyright.gov/circs/circ21.pdf
Fair Use Evaluation Tools
The four factors listed above are intended to be guidelines (not precise rules or law) for the application of Fair Use. This means that there is intended to be flexibility in how they are applied. Keep this in mind as you use the tools below to apply fair use guidelines to your situation. Rather than looking at whether your instruction follows fair use, It may be more useful to think about how you can shape your instruction to strengthen your justification that it fits fair use.