Limitations on the Rights of Owners - Fair Use

What is Fair Use?

Fair Use is an exemption to the rights of copyright holders that allows users of copyrighted works the right to exercise without permission some of the rights normally exclusively reserved for the copyright holder. This encourages socially beneficial uses of copyrighted works for teaching, learning, and scholarship – uses such as quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published work – which would otherwise be infringements of copyright. (From Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, p. 19.)

The Law:

The complete text of the Fair Use exemption is found in Section 107 of the Copyright Act. It states that fair use (including reproduction) of a copyrighted work includes purposes such as criticism, comment, news reporting, teaching, scholarship, and research. However, to determine whether a particular use is fair, four factors must be considered:

• the purpose and character of the use
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the whole
• the effect of the use on the market

The Four Factors:

Congress was intentionally vague in defining what constitutes fair use, and the Supreme Court has held that no “bright line rules” can be applied. A determination of whether a use is fair must be made for each specific use of a specific copyrighted work at a specific time surrounded by specific circumstances. In each case, for each factor, the use will lie on a continuum between strongly favoring and strongly opposing fair use. The final determination must take into consideration all four factors; a single factor weighing against fair use does not necessarily mean the use is not fair.

Factor 1: The Purpose and Character of the Use

Non-profit, educational uses are greatly favored over commercial uses. But, the mere fact that the purpose of the use is educational does not automatically mean the use is fair. The other three factors must also be considered.

Factor 2: The Nature of the Copyrighted Work

If the original work is highly creative (fiction, music, drama) or unpublished, this weighs against fair use. If the original work is factual and published, this weighs in favor of fair use.

Factor 3: The Amount and Substantiality of the Portion Used

Reproduction of an entire work or “the heart of the work” (even if it only is a small percentage of the work) weighs against fair use. Use of a small portion, not central to the entire work, and in an amount appropriate to the favored educational purpose weighs in favor of fair use.

Factor 4: The Effect on the Market

Essentially, this means that if the use would replace sale of a copyrighted work, or would have a negative impact on the market for the original, the use is less likely to be considered fair. If no similar product is available, a licensing mechanism is not in place, or use would have no impact on the market for the original, then the use is more likely to be fair.

Determining If Your Use Is Fair

Each time you want to use copyrighted materials, you must determine if the use is fair. Again, EDUCATIONAL USE IS NOT AUTOMATICALLY FAIR USE. All four factors must be considered in context. Reasonable people will disagree over whether some uses are fair or not.

To assist in determining whether a use can reasonably be considered fair, the Copyright Management Center at IUPUI has created this Checklist for Fair Use.

Making these determinations can be confusing and complex. But if you are conscientious about making a reasonable determination, you improve your chances that should you be sued for infringement, you may qualify for a provision of the statute that shields from statutory damages educators who “reasonably believed and had reasonable grounds for believing that his or her use was fair use.” (17 USC 504(c)(2))

Also, remember that determining that a use is not fair does not mean it is impossible; it simply means that you must seek permission from the copyright holder for the use. For more information on permissions, see Copyright Permissions.

Guidelines

Since the drafting of the Copyright Act of 1976, various commissions and other groups have published guidelines for applying fair use. However, none of these guidelines have the force of law. Strict adherence to these guidelines may expand or limit fair use, depending on the situation, and does not shield the user from being sued.

The complete texts of most of these guidelines, along with additional information about them, can be found at the IUPUI Copyright Management Center page on Fair Use Guidelines.