Welcome to the Copyright Fair Use Guide!
What is Fair Use?
Fair Use is a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.
It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works.
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary, criticism and news reporting.
Fair Use and File Sharing
It is imperative to understand the difference between legal downloads and illegal file sharing. In the peer-to-peer file sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.
Although there are exceptions under the law that allow copying or distribution of protected works, the use of peer-to-peer (P2P) software programs to download or upload copyrighted music and movies without permission of the copyright owner would virtually never qualify for an exception. Criminal and civil penalties may result from copyright violation.
Fair Use - Text and Data Mining
The transformative nature of computer based analytical processes such as text mining, web mining and data mining has led many to form the view that such uses would be protected under fair use.
Fair Use on the Internet
In today’s world, internet is full of works protected by copyright law. The fair use doctrine allows you to use those works while putting in mind the four factors of fair use. Use only a small porting of the work, do not use them for commercial purposes.
The Four Factors of Fair Use
To determine whether a use of copyrighted work is or is not a fair use, you need to apply all four factors of fair use.
Factor 1: The purpose and character of your use
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. The statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research.
Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
Examples:
- Nonprofit educational use
- Face-to-face teaching
- Criticism and comment
- Scholarship and research
- News reporting
Factor 2: The nature of the copyrighted work
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work.
This factor will generally weigh in favor of fair use if the work to be used is factual in nature (scholarly, 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.
Examples:
- Digital or analog
- Fiction or non-fiction
- Audio-visual formats including sound recordings
- Software
- Dramatic or non-dramatic
- Performance or display
- Published or unpublished
- Published before or after 1976
- Sculpture
- Picture
Factor 3: The amount and substantiality of the portion taken
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective.
However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The “amount” of a work is also measured in qualitative terms.
Examples:
- Quantatative: a small portion
- Qualitative: not the "heart of the work"
Factor 4: The effect of the use upon the potential market
Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.
Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.
Examples:
- No significant effect on the market for the copyrighted work
- No significant effect on the potential market for the copyrighted work
- No similar product marketed
- Licensing or permission mechanism is absent
Fair Use Evaluator
Helps you determine if the use of a protected work constitutes “fair use.” Helps users collect, organize, and document the information they may need to support a fair use claim, and provides a time-stamped PDF document for the users’ records.
Useful Links
Fair Use Definition
Fair Use Doctrine
Fair Use Explained
Fair Use Week
U.S. Copyright Office Fair Use Index.
The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).
U.S. Copyrighted Works that have Expired into the Public Domain.
A chart showing the current year, and the status of various copyrighted works and when they become part of the the Public Domain., with explanatory notes.
Stanford Copyright & Fair Use Website.
The Stanford Copyright & Fair Use site includes primary case law, statutes, regulations, as well as current feeds of newly filed copyright lawsuits, pending legislation, regulations, copyright office news, scholarly articles, blog and twitter feeds from practicing attorneys and law professors. Its emphasis is on copyright issues especially relevant to the education and library community, including examples of fair use and policies. Useful copyright charts and tools are continually added to help users evaluate copyright status and best practices.
Basic Copyright Principles - Stanford University.
A collection of informational sheets to remind the university community of the applicatbility of copyright law at academic institutions like Stanford. Includes: basic copyright principles, fair use doctrine, library copyright considerations, obtaining permissions, internet and electronic medium concerns, DMCA, and additional resources.
Learn About Copyright - Copyright Clearance Center.
A resource for educational information about the subject of copyright for the U.S. and around the world. Includes courses, programs, videos, articles, and papers.
Copyright Tips for Programming Librarians: Using Images in Programming Materials.
Everyone can be a novice graphic artist using computer technologies to capture appealing designs, images, and photos found on the Internet for use in presentations, Web sites, and promotional materials. Some may pause and wonder, “Is this a copyright problem?” The answer, of course, is “it depends.” There are no hard and fast rules in the copyright law to tell us whether our use of an image is lawful. All we can be sure of is that the copyright law protects exclusive rights of creators or rights holders except when it is considered fair or reasonable for a user to exercise an exclusive right. It is a matter of judgment. Given how you want to use an image and why you want to use it balanced against the economic interests of rights holders is the issue of concern.
Code of Best Practices in Fair Use for OpenCourseWare.
This document is a code of best practices designed to help those preparing OpenCourseWare (OCW) to interpret and apply fair use under United States copyright law.
