Copyright and Fair Use: Copyright & Fair Use Defined

What is Fair Use?

The fair use exemption exists to achieve a balance between the copyright owner and the general public who may benefit from using copyrighted works without seeking permission. This exemption is a limitation on the exclusive rights of the copyright owner and, when correctly applied, can be useful for some educational settings. Certain uses within scholarship, teaching and research may qualify for fair use.

A good fair use analysis/conclusion can allow for use of copyrighted works under certain circumstances without seeking permission or paying usage fees.

The Law of Fair Use

U.S. Copyright Act, 17 U.S.C. ¤ 107 Limitations on Exclusive Rights: Fair Use

"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 in 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. the nature of the copyrighted work.
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (17 U.S.C. ¤ 107)

Note the Fair Use (Section 107) statute is brief, simple and understandable; however it is also vague and intended to be flexible. The strength of any fair use claim results more from a good reasoned analysis of the facts of each case and an evaluation of the interests of users and owners than from any formula devised to arrive at a correct conclusion for your specific situation. Your fair use conclusion may differ from that of others.

The Meaning of the Four Fair Use Factors

The purpose of the fair use provision is to allow limited use of copyrighted material without obtaining prior permission from the copyright owner. Consideration of all of the fair use factors explained below is required. However, all factors do not have to be on the favorable side to reasonably conclude that a valid fair use claim can be made.

A fair use analysis is fact driven. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable."

The same fair use analysis applies to all formats and mediums, including the digital environment, and includes not only the right of reproduction but also the rights of performance, display, modification, and distribution.

1. Purpose and Character of the Use

   This factor will generally weigh in favor of fair use if the proposed use is nonprofit and educational-as opposed to a commercial use. Most uses in the university environment can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. A nonprofit, educational use would likely favor a finding of fair use, but remember that the other three factors must also be considered. Additionally, with respect to the reproduction right, this factor is more likely to weigh in favor of fair use if the use is transformative rather than verbatim copying.

2. Nature of the Copyrighted Work

   This factor will generally weigh in favor of fair use if the work to be used is factual in nature (technical, scientific, etc.), as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and so on. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected "facts and ideas" on the one hand and protected "expression" on the other, is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression.

   Fair use applies to unpublished works as it does to published works, but the author's rights of first publication may be a factor weighing against fair use if a work is unpublished.

3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

   Although there are no numerical or percentage limits, the larger the amount of a work one uses, the less likely it will be fair use. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and allows the doctrine to be practical in the higher education setting. This factor also takes into consideration the quality of the portion taken as well as the quantity. Sometimes, even if only a small amount is taken, this factor may weigh against fair use if the portion can be justly characterized as "the heart of the matter." It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more of the original taken, in amount and substantiality, the greater the negative impact on the market for the copyrighted work.

4. The Effect of the Use on the Market for or Value of the Copyrighted Work

   This factor examines the anticipated effect of the use on the publisher's market. If the proposed use is likely to become widespread and would negatively affect the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four, although the factors all interrelate and must be evaluated in conjunction with each other.

Weighing and Balancing the Factors

A central principle of the fair use analysis is a flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the action will not fit the fair use exemption and may require permission from the copyright owner. Reliance on a "reasoned" analysis using the Checklist for Fair Use is essential to claiming a good-faith effort.