Copyright law recognizes that not all uses of copyrighted works infringe the rights of the copyright owner. Section 107 of the Copyright Act 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 by 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.
"Fair uses" of works do not require permission.
Four factors are considered in determining whether or not a particular use is fair or not. No single factor dictates whether a particular use is fair use. All four factors must be considered in making a determination.
1. What is the purpose of the use?
Fair use favors any use that is nonprofit, educational or personal, especially if it is for teaching, research, scholarship, criticism, commentary, or news reporting. Fair use does not favor uses that are commercial, for profit, or for entertainment purposes. It is important to remember that not all educational uses are fair use. Transformative uses that transform or modify the original purpose of the work and contribute new intellectual value to the original work are often considered fair use.
2. What is the nature of the work?
Since authors should have final say over when and how their works are published, fair use tends to favor published works over unpublished works. In addition, factual works are more likely to be considered available for fair use than creative works such as art, music, novels, films, and plays.
3. How much of the work will you use?
Using a small amount generally favors fair use, whereas using a large amount weighs more against fair use. However, even a small amount of a work can be too much if it can be considered the heart of the work.
4. What effect will the use have on the market or potential market value of the work?
Does the use deprive the copyright owner of income or undermine a new or potential market? If so, the use does not favor fair use.
It is not always easy to apply this test, and everyone does not always afree on the outcome in any given case. The University of Texas has posted an excellent webpage that contains an explanation of fair use written by Georgia Harper, a leading expert in copyright law. Click here to view that explanation.
Another good source of information is the discussion of fair use found at CETUS.org.
The following tools are based on the four factors of fair use - purpose, nature, amount and effect – and help determine if fair use applies. They provide an important means for recording your fair use analysis, which is critical to establishing "reasonable and good-faith" attempts to apply fair use.
In addition, the Association of Research Libraries, in partnership with the Center for Social Media and the Washington College of Law at American University, developed the Code of Best Practices in Fair Use for Academic and Research Libraries in 2012 to aid the research and academic library community in determining fair use.
In 2002, Congress passed the Technology, Education, and Copyright Harmonization Act, or TEACH Act, to allow the performance and display of copyrighted works for online distance education purposes. The TEACH Act only applies to performances of nondramatic literary or musical works in their entirety and limited portions of other works, provided:
Instructors of University courses may transmit entire musical works, but may not transmit entire dramatic works (operas, plays).
Goucher College Library, 1021 Dulaney Valley Road, Baltimore, MD 21204 • 410-337-6360 • © 2013-2017 •
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.