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Copyright and Fair Use

Guidance on copyright and fair use of copyrighted materials

Fair Use

What is Fair Use?

Copyright law provides for some built-in protections for First Amendment interests through what is called fair use. Fair use is the right to use copyrighted material without permissions or payment under certain circumstances. The concept of Fair Use can be found in the  U.S. Code, Title 17, Chapter 1, Section 107. The preamble of this section clearly states the overall effect of the provision: "The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Fair use puts limits on exclusive rights of copyright owners and allows certain uses of copyrighted works without permission or payment. Copyright law lists four nonexclusive factors that are used to determine fair use:

  1. The purpose and character of the use, particularly whether the use is of a commercial nature or is for nonprofit educational purposes. 
  2. The nature of the copyrighted work. 
  3. The proportion of material that was used. 
  4. The potential economic impact on the copyrighted work. 

Determining Fair Use

While U.S. Courts have considered numerous cases and have made numerous ruling concerning fair use, a detailed definition of the concept has never been determined. Copyright law does not explicitly specify how to apply fair use and there is no specific formula. Rather, lawyers and judges decide on fair use on a case by case basis and determinations can vary depending on several factors. Fair use decisions are typically made by employing the "Rule of Reason," whereby judges consider the facts and circumstances of a particular case and decide if an unlicensed use of copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner. 

Historically, fair use litigation reveals two key questions that are most often used in determining fair use:

  1. Did the unlicensed use transform the copyrighted material by using it for a purpose significantly different than the original? 
  2. Was the material used appropriate in form and quantity, considering the nature and size of the copyrighted work as a whole and its intended purpose?

Another consideration in determining fair use is whether the user acted reasonably and in good faith in light of best practices in his or her particular field. Being aware of and adhering to best practices concerning fair use help prove that authors or creators were thoughtful in their decision and were acting in good faith when using copyrighted material. Using and retaining a "fair use checklist" is another great way to demonstrate the intent and consideration of the author or creator. Finally, providng proper attribution to the copyright owner is always a good idea when using copyrighted material. 

 

Factors Used to Determine Fair Use

The distinction between fair use and  infringement in a particular case is not always clear or easily defined.

These four factors help determine if use is fair:

  1. Purpose of use.
    Is the use for education or research or is it for profit?
  2. Nature of the work.
    Is the work fiction or non-fiction?
  3. Amount of the work used.
    Was a large or small proportion of the work used? Was it the significant or central part of the work?
  4. Effect on market.
    How will the use affect the author's or publisher's ability to sell the work?

Tools

Tools for Determining Fair Use

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