If we did not already have “fair use” in our copyright law, we would have to add it: it’s that important. It is a mission critical structural support for all the teaching and learning activities in higher education and beyond.
WHAT is Fair Use?
“Fair use,” for copyright purposes, is a critical limitation on the otherwise exclusive rights of a copyright holder to use and control any uses of all or part of their work, including reproduction, distribution, modification, performance, and display. Without limits, like fair use, on the holder’s monopoly, permission for any and all uses would be required. Based on the interplay and application of four specific factors (discussed below) to any particular fact scenario, a reasoned, supportable decision is made whether or not the proposed use is a “fair use.”
WHO Needs to Know About Fair Use? YOU DO
Anyone who wants to use any amount-however small- for any purpose – nonprofit educational or commercial - of something someone else authored or created without the express permission of the copyright holder.
Examples: Quotes, articles, book chapters, portions of a song or music, a movie clip, an image, a photograph, etc.
WHY Are There No Specific Rules Governing How Much Can Be Used?
Copyright law’s primary purpose is to “promote the progress of science and the useful arts” by giving authors and inventors a limited monopoly of their works and inventions as an incentive to create. But to progress, society requires access and use of that which has gone before. Competing interests must be balanced and fair use is the primary mechanism that can accommodate that. In order to work an equitable balance, fair use must, by nature, be fact-dependent, flexible, and adaptable to any situation. Bright line rules or rigid definitions of amounts allowed no matter what the conditions are is to assume there is one solution that solves every problem: one size fits all.
What Am I Expected To Know?
As you read through this short overview of fair use, or some other resource on the web, it is easy to become overwhelmed. Don’t go there. This is not law school and a few paragraphs are not going to make you a fair use expert. Keep in mind:
• Not all four factors need to favor fair use (at least half or more)
• Reasonable minds can differ over what is a fair use
• All that is expected of you is that you take the time to undertake a reasonable/reasoned consideration of each factor in the context of your situation and make a good-faith, objective decision favoring or disfavoring fair use for each factor.
• Use or refer to the Fair Use Considerations Worksheet as a reminder of the considerations involved and as documentation of your reasonable effort.
Four Fair Use Factors
1. The PURPOSE AND CHARACTER of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
• The purpose generally weighs in favor of fair use for our nonprofit educational uses here at the university. But educational use alone does not automatically result in a finding of fair use because all factors must be considered.
• The character prong of Factor One is more likely to weigh in favor of fair use if your use is transformative rather than verbatim copying. Recent court decisions have emphasized that when a use is substantially transformative, the other factors are less significant. The test for a transformative use is "does the use merely supercede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)
Note: Educational Use Alone is Not Enough to Constitute Fair Use
2. The NATURE of the copyrighted work
• Generally weighs in favor of fair use if the nature of the work used is factual (scholarly, technical, scientific) rather than works involving more creative expression, such as plays, poems, fictional works, photographs, paintings and such.
3. The AMOUNT AND SUBSTANTIALITY of the portion used in relation to the copyrighted work as a whole
• Amount is a sliding scale factor -- the larger the amount you use, the less likely it will be a fair use. As discussed above, there are no bright line rules or guidelines concerning amount allowed, preserving the fact-dependent, flexible nature of the fair use doctrine.
• Substantiality here considers whether the portion use amounts to the "heart of the matter" or the key purpose of the work. Fortunately, selection of a particular portion of a book for reserve reading does not automatically confer "heart of the matter" status on the amount assigned. There are many other reasons why a particular portion is chosen by the professor for the class.
4. The EFFECT of the use UPON THE POTENTIAL MARKET for or value of the copyrighted work
• If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use. Lost permission fees does not amount to a negative impact on the market for the work. That is, the purpose of the fair use analysis is to decide whether or not a permission fee is required; just because there is a permissions market should not determine whether a fee is necessary in the first place.
To help you through it, as well as keep a record of your analysis, use the Fair Use Considerations Worksheet.
OTHER APPROACHES TO PRESENTING FAIR USE
• Stanford University: Fair Use
• University of Minnesota Libraries
-Understanding Fair Use
-Thinking Through Fair Use
• Copyright Crash Course: Fair Use of Copyrighted Materials
• Fair Use: Purdue University Copyright Office
• Code of Best Practices