Fair Use: The Ins and Outs
Section 107 of the Copyright Act stipulates that there are certain purposes for which the reproduction of a work is considered a "fair use." As copyright terms have been extended and permissions seem more difficult and expensive to obtain, this limitation on copyright has become a right that educators often want to assert. The section of the Code on fair use is brief and intentionally vague because every case is unique:
107 Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A [covering the exclusive rights of a copyright holder], 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 fair use, the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and the substantiality of the portion used in proportion to the copyrighted work as a whole;
- 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The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors.
Making a fair use claim requires that you balance your use against the exclusive rights of the copyright holder. The best way to do this is to make a good faith analysis of how your proposed use stacks up against each of the four factors listed in the Code- even if you are an educator or scholar. Remember, not all educational use has been judged to be fair use. There are no right or wrong answers. You must rely on your own common sense in making this assessment. Keep in mind the following about each of the factors:
The PURPOSE and CHARACTER of the use
This factor has traditionally focused on purpose: whether the use was commercial versus nonprofit or educational. Educational and nonprofit uses are preferred. However, more recently, courts have expanded their interpretation of this factor to take into account whether or not the use is TRANSFORMATIVE. That is, does the new use add something so new that the original content or meaning is completely altered (e.g. a parody or a remix)? The more transformative, the better the case for fair use.
The NATURE of the copyrighted work itself
The weight is whether the work is creative or factual in nature. For example, is the work a novel or a scientific article? You can make a better case for the fair use of factual material. Additionally, is the work published or unpublished? The right of first publication is significant and if a work has not yet been published, this will weigh against fair use.
The AMOUNT and the SUBSTANTIALITY
This factor considers how much of the total work will be used. The greater the percentage used, the less this factor will weigh in your favor. Are you using an entire book or a single chapter? An entire poem or a single verse? When making a fair use argument, less is better. Finally, when thinking about substantiality, are you using "the heart of the work?" Taking the very essence of a work can be a deathblow against a fair use claim.
The effect on the POTENTIAL MARKET for or VALUE of the work
The simple question here is how your use will affect either the financial or intrinsic value of a work to the copyright holder.
Technically, none of the factors outweigh the others, although historically factor 4 seems to generate the most concern. By undertaking a good faith analysis of whether or not your use is truly a fair use, you will protect both yourself and the institution against claims of copyright infringement. The University of Minnesota has provided a useful online tool that you can use to generate a fair use assessment to retain for your personal records.
Are You Sure You Want to Assert Fair Use?
Once again, asserting fair use always entails some degree of risk. You must always balance any fair use claim against the exclusive rights of the copyright holder and conduct a thorough analysis of the risks involved in making such a claim. Thus, you may want to exhaust your other options before you rely on fair use. You should first determine:
Is the work that you want to use under copyright, and if so, do you want to exercise one of the exclusive rights of the copyright holder? If the answer to both of those questions is yes, you do have other options:
- Are you making a use that is specifically exempted by statute?
- Does USU already have licensed use of the resource that you can use?
- Is it possible to request permission for your use?
- Is there some other material that would serve your purpose just as well that is available either through the public domain or as an open access resource?
If none of these options seem appropriate, you may want to consider employing fair use.