What is Fair Use?
Fair Use, a doctrine of US copyright law that is intended to permit reproduction of some copyrighted material for scholarly research, is one of the most misunderstood concepts of the law itself. Some believe the Fair Use allows blanket reproduction of copyrighted material for all educators. Others understand that Fair Use is not blanket permission for all educators, but believe that there is some kind of Fair Use rulebook that specifies exact amounts of content that can be legally reproduced. Neither of these beliefs is true.
Fair Use is a doctrine, written into Section 107 of US Copyright Law, that allows for limited reproduction of copyrighted material if certain conditions apply. Rather than supplying a "fair use rulebook," the law outlines four factors that must be considered to decide if Fair Use applies. Those four factors are:
- Nature of the work
- Purpose of the use
- Amount to be used
- Effect on the market
Each factor must be considered. But keep in mind that the final determination of Fair Use must be made in a court of law, so even if you consider the four factors and determine that Fair Use applies you may still be subject to a claim by the copyright owner of the material you reproduce.
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The Four Factors
To determine if Fair Use applies one must consider all four factors. But what do they mean? And how do I apply them? Often copyright experts speak in terms of qualities that "favor" and "oppose" Fair Use. Qualities that favor Fair Use are those that are likely to meet the standards of Fair Use, while qualities that oppose Fair Use are those that generally do not meet the standards of Fair Use
"Nature of the work" refers to the work you want to reproduce. Is it a novel? A feature film? A newspaper article? Was it published or not? In general nonfiction works (such as articles from news magazines and television news clips) favor Fair Use. Highly creative works (such as novels and paintings) oppose Fair Use. Published materials favor Fair Use, while unpublished materials oppose Fair Use.
"Purpose of the use" refers to the way you plan to use the material you reproduce. This is probably the simplest factor for most people at Gallaudet to consider. Teaching, research, parody, news reporting, and criticism all favor Fair Use. "Transformative use" also favors Fair Use. So taking a copyrighted work and transforming it into something brand new (taking a scene from one of the "Batman" movies, for example, and making a deaf version) favors Fair Use. Commercial activity and entertainment oppose Fair Use.
"Amount to be used" may seem obvious, but this is copyright law, so of course it is not! The amount issue is relative, so the question is how much of the entire copyrighted work will be reproduced. There are no clear guidelines on how much is too much, but there are some clues. Most of the guidelines recommend copying a "small amount." They also recommend only copying as much as is absolutely necessary for the educational goal desired. One important concept relating to amount is that one may not reproduce any portion of the work that is considered central to the work (often described as "the heart of the work").
"Effect on the market" refers to the impact that reproducing the copyrighted work will have on sales of that work. If, for example, students are not required to purchase a textbook for a course but an instructor provides photocopies of 8 of 10 chapters of a book for them to read, that has a negative effect on sales of that book.
Applying the Four Factors
Now that you know what the four factors are, how do you use them? That's the tricky part. You need to look at the factors, weigh each one individually, and then decide for yourself how whether the reproduction you want to do weighs in favor of Fair Use or against it. Considering Fair Use is really risk management, because there's no way to be 100% certain you are right. If you consider the four factors honestly and determine that you do meet the standards of Fair Use, then your risk is low. But if you consider the factors and realize the standards of Fair Use do not apply, you take a much greater risk if you decide to go ahead and reproduce the item in question. And of course if you aren't entirely honest with yourself as you consider Fair Use you are also creating greater risk.
Fortunately there are some good tools available to help you determine your level of risk. It is important to understand that you don't need to satisfy all of the four factors in order for Fair Use to apply. You can be reasonably certain that Fair Use applies if the majority of the factors, when applied, are in favor of Fair Use. The Copyright Advisory Office at Columbia University Libraries has created a "Fair Use Checklist" that gives you a clear and visual means of weighing the four factors.