Fair Use

Fair use is like a scale. Everyone wants to tip it one way or the other, but the only way to do that is to analyze and define the principles it weighs. Unlike the many guidelines it has spawned that have no force of law, fair use is statutory. It is part of U.S. Copyright Law
              (sect. 107, Copyright Act of 1976).

What Fair Use Allows

For the purposes of criticism, comment, new reporting, teaching (including multiple copies for classroom use), scholarship, or research, fair use allows someone who does not own the copyright of a work to use portions of it without either paying the copyright holder or asking for permission. Fair use is a powerful tool.  It should be used aggressively to encourage scholarship and the sharing of ideas, but it is not a green light for any educational use of protected works.

The four fair use factors are weights to add to the scale.  All four must be weighed in combination. While one factor alone cannot tip the scale in favor of fair use, cumulatively they can. The more factors favoring fair use, the stronger a tool fair use becomes. A rule of thumb: if two of the first three factors weigh against fair use, the fourth factor becomes weightier, and it is likely the use is not fair.

The Four Fair Use Factors

     1. The purpose and character of the use, including whether such use is of a
    commercial nature or is for nonprofit educational purposes;
     The balance tips toward fair use when use is educational and non-profit, not
     commercial.
 
     2. The nature of the copyrighted work;
     The balance tips in favor of fair use for published, factual, nonfiction material;
     the reverse is true for unpublished^*or  highly creative work (music, novels).
 
     3. The amount and substantiality of the portion used in relation to the
    copyrighted work as a whole; and
    The balance tips in favor of fair use when a portion  is small, not central to the
     work, and appropriate to the exact educational purpose intended.
 
     4. The effect of the use upon the potential market for or value of the
    copyrighted work.
    The balance tips in favor of fair use when a legal copy is owned and use doesn't
     significantly impair sales.

     * The fact that a work is unpublished shall not itself bar a finding of fair use if such finding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  (sect. 107, Copyright Act of 1976)

Indiana University has a helpful fair use checklist.  Participants in the Conference/s on Fair Use (CONFU),¹ much like their earlier counterparts who developed classroom copying guidelines in 1976, have discussed/ proposed guidelines to help make fair use more concrete. While these guidelines offer a reasonable starting point, they are not legally binding, often stress minimal, not maximum uses, and are contested frequently by professional organizations.            

Fair Use Guidelines - NOT LEGALLY BINDING (except for the Teach Act)

Fair Use Scenarios

1. A professor wants to take excerpts from six musical works to compare differences in a passage performed by different groups. The works were obtained legally and no licenses were signed. Is it a fair use for the professor to make this recording for use in classroom teaching?

The purpose of the copying is instruction, not profit. Based on the first factor, the use would be fair. The works are highly creative, however, so the second factor weighs against fair use. Only small portions are being used. In this case the third fair use factor is met. There is little evidence that the copying, given its extent and purpose, would have any market effect. The issue of market effect is actually lessened since two of the other three factors are met. Unless there is a comparable commercially available recording, this would be a fair use.

2. An economics professor finds a great book in the library that has four short chapters.  They directly address a key topic of the course. Is it a fair use to digitize these chapters and have them placed on e-reserves?

The purpose of the copying is instruction, not profit. Based on the first factor, the use would be fair. The works are not highly creative, so the second factor also supports fair use. The third factor is more problematic. Four chapters appear to abridge the third use factor, which limits the amount and substantiality of what is used. If the work were 400 pages and each chapter was 10 pages, then in essence only 10% of the entire work--a small portion would be used. This could be fair use. If, however, the chapters selected represented the central content pivotal to the entire work, the substantiality of the chapters would not support fair use. Presuming that the chapters are 10 pages long, the work is 400 pages, the chapters illustrate a key topic in the course but not a central element in the work itself, and the publisher has not developed a pamphlet for separate sale with these chapters or individual chapters, then the use would be fair. If these chapters are to be used in reserves repeatedly, however, permission will need to be obtained.