What is Fair Use?
Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.
Many activities of college life may fall under the Fair Use exemption of the Copyright Act. This exemption states, in part:
“The fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(b) the nature of the copyrighted work;
(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
§107, Copyright Act
Each situation requires analysis of the four factors—Fair Use is a balancing test. It is generally understood that no one factor is automatically given more weight than another, and a use that is opposed by some factors may still be justified if the other factors favor it. However, to date, the courts have provided little guidance in the interpretation of Fair Use in college contexts.
Congress has stated that “the doctrine [of Fair Use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.”[1] The more clearly each factor favors your intended use, the more confident you may be that the use is fair.
The following four factors are used in determining fair use:
Purpose: What purpose does using the copyrighted work serve? Is it commercial or nonprofit? Nonprofit/educational uses are more likely to fall under fair use.
Nature: What is the nature of the copyrighted work? Is it factual or creative? Fact-based works are more likely to fall under fair use.
Amount: How much of the copyrighted work will be reproduced? Does original content make up the main portion, with only what is necessary from the copyrighted work? Using less of the copyrighted work is more likely to fall under fair use.
Effect: Will reproduction of the copyrighted work have an effect on its marketability or value? A reproduction that has little to no effect on the original work is more likely to fall under fair use.
Misconceptions About Fair Use
Although applying the Fair Use Test is made on a case-by-case basis, many misconceptions have arisen that seek to make these misconceptions Fair Use "Rules". For example, "Any educational or non-commercial use is Fair Use", or "Fair Use only applies to print materials".
The following sources provide examples and explanations of some commonly-held Fair Use misconceptions: