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What is Fair Use?
To create a balance between the interests of those who develop intellectual and creative works and those who benefit from accessing and using those works, copyright law includes exceptions that limit the exclusive rights of copyright holders. One such exception is fair use, which allows users of copyrighted works to exercise some rights to use works under certain circumstances without seeking permission or paying royalties. Fair use is probably the most important exception to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. At the same time, a fair-use analysis requires a balancing of multiple factors and can be difficult to apply to a given set of circumstances.
The complexity of fair use and its importance in academia make it imperative that every member of the campus instructional community understands how to make judgements concerning fair use. The information and tools linked below are designed to assist your decision-making. When they are combined with thoughtful consideration of the legitimate interests of copyright owners, they will help assure good faith applications of fair use at the university.
In this section:
Understanding Fair Use
Title 17 Section 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 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Fair use is an important concept in U.S. copyright law. It is one of the primary mechanisms for balancing the interests of copyright owners and those of copyright users. Because of the fair use provision (and other exceptions to the law) copyright users may freely use and apply the work of others in a myriad of ways without requesting permission from or paying royalties to the creators. Fair use likewise acknowledges the rights of copyright owners to profit from the fruits of their intellectual labors. It is through balancing the rights of users and owners that fair use plays an important role in promoting the “Progress of Science and the useful Arts,” a purpose enshrined in the U.S. Constitution.
For those who want to assert that their use of copyrighted material is a fair use, it is important to analyze the intended use with regard to the four factors stated in the law. It is through careful consideration of the four factors that one will identify the limits and boundaries of fair use as well as guiding the user to the opportunities provided by the statute. The challenge in any fair-use analysis is to arrive at a conclusion that the individual is comfortable with, that is reasonably supportable by a fair-use analysis, and that the user believes is fair to all interested parties. Remember, the name of Section 107 is “fair use.”
Like many aspects of copyright law, fair use requires one to balance the four factors, relying on both good sense and an “equitable rule of reason”. As the result of this analysis, one may assert that an intended use is a fair use or may need to seek permission when the analysis suggests that course of action. Balancing the four factors is an inexact process and one person’s opinion may vary from another’s. Rather than attempting to achieve a formulaic “right” answer, the strength of a fair-use analysis results from careful consideration of the four factors and the interests of all involved.
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. See Plagiarism vs. Copyright Infringement.
The fair use provision may be applied to the use of all copyrighted works, even those in digital form. To determine whether any particular use is a fair use, you should conduct a case-by-case analysis based on the four factors above. There are a number of tools and guidelines to aid you in your analysis.
Fair Use Tools & Guidelines
Fair-Use Analysis Tools
There are a variety of tools available to assist you in analyzing whether a particular use weighs in favor of or against a claim of fair use. These tools draw on language in U.S. copyright law, court decisions, analysis by legal experts and reports of government bodies. Despite their legal orientation, these tools are very accessible and very helpful for many purposes.
- Fair Use Evaluator Form (ALA) This site will help you better understand how to determine the “fairness” of a use under the U.S. Copyright Code.
- Fair Use Checklist (Columbia University Libraries)
- Using the Four Factor Fair Use Test (UT Austin) This site gives descriptions and examples of uses that weigh in favor of and against fair use and those “in the middle” that can be further beneficial in a fair-use analysis. The four factors are defined individually and in relation to one another.
- Thinking Through Fair Use (UMn) This is an interactive tool that allows you to select uses that favor and weigh against fair use based on your desired use. Includes brief descriptions of each factor.
- Copy Photography Computator (Visual Resources Association) This site walks you through a series of questions about the work desired for copying and analyzes whether fair use applies.
- Fair Use Guidelines (below) are additional sources that have been developed by various groups, but which have also raised many questions. Review them carefully before use.
Fair-Use Court Cases
In addition to these tools, you may also find it informative to review court cases where a claim of fair use was affirmed or denied.
- Summaries of Court Cases (Stanford) This site provides brief summaries and sorts cases by use going back more than 20 years.
- Fair Use Project (Stanford Law) This site follows active court cases regarding fair use, in addition to providing “legal support to a range of projects designed to clarify, and extend, the boundaries of ‘fair use’ in order to enhance creative freedom.”
In the attempt to simplify some applications of fair use, certain guidelines have emerged over time. Originally, the U.S. Congress included as part of the legislative history for the Copyright Act of 1976 the most well-known set of guidelines, Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (page 6), as well as Guidelines for Educational Uses of Music. (See H.R. 94-1476.) These guidelines served as a model for subsequent draft guidelines published later in the 1970s and 1980s, such as Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes .
Later still, during the 1990s, the Clinton administration commissioned the Conference on Fair Use (CONFU) to address concerns about emerging digital technology. CONFU released draft guidelines on distance education, multimedia, images, electronic reserve services in libraries, and interlibrary loan. No consensus agreement has been achieved surrounding CONFU guidelines and they remain in draft form only and are not mandatory.
Since that time various professional organizations have created these very helpful codes of best practice for a variety of mediums, e.g the visual arts, poetry, journalism, images, open courseware, and etc. You can find these useful codes here on the Center for Media and Social Impacts web site http://www.cmsimpact.org/fair-use/best-practices .
When considering the Congressional guidelines it is important to note that they are not the law. In 1976, Congress intentionally omitted the guidelines contained in H.R. 94-1476 from the copyright statute. It should be pointed out that these guidelines and others attempt to express minimum standards for fair use and that there may be instances where use which does not fall within stated guidelines may nonetheless be permitted under fair use. (The code of best practices and fair-use analysis tools, above, may be more appropriate for helping you assess whether the contemplated use meets a reasonable determination of fair use.)
Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.
Information in this page was reviewed and approved by legal counsel. Please see disclaimer. Review date: July 2015.