To create a balance between the interests of those who develop intellectual and creative works and those who benefit from accessing and using said works, copyright law includes exemptions that limit the exclusive rights of copyright holders. One such exemption is fair use, which allows users of copyrighted works to exercise certain rights without seeking permission or paying royalties.

The complexity of the Fair Use Doctrine and its importance in academia make it imperative that every member of the campus instructional community understands how to make judgments concerning fair use. The information and tools that follow are designed to assist your decision-making. When combined with a thoughtful consideration of the legitimate interests of copyright owners, they will help assure good faith applications of fair use at the university.

The Four Factors of Fair Use

The determination of whether the use of a copyrighted work is within fair use depends upon making a reasoned and balanced application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act. These factors are as follows:

• The purpose and character of the use, including whether the copied material will be for non-profit, educational, or commercial use. This factor at first seems reassuring; but unfortunately for educators, several courts have held that the absence of financial gain, in and of itself, is insufficient for a finding of fair use.
• The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. Photocopies made of a newspaper, for example, are more likely to be considered a fair use than copies made of a musical score or a short story. Likewise, duplication of material originally developed for classroom consumption is less likely to be a fair use than is the duplication of materials prepared for public consumption. For example, a teacher who photocopies a workbook page or a textbook chapter is depriving the copyright owner of profits more directly than if copying a page from the daily newspaper.
• The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of 1) the proportion of the larger work that is copied and used, and 2) the significance of the copied portion.
• The effect of the use on the potential market of the copyrighted work. This factor is regarded as the most critical in determining fair use, and it serves as the basic principle from which the other three factors are derived and to which they are related. If the reproduction of a copyrighted work reduces the potential market and sales and, therefore, the potential profits of the copyright owner, that use is unlikely to be found a fair use.

All four factors should be evaluated in each case, and no single factor will determine the outcome. In other words, while fair use is specifically intended to apply to teaching, research, and other activities, an educational purpose alone does not make a use fair.

Keep in mind, too, each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable." If you, as an employee of a non-profit educational institution, have made a rational and reasonable fair use determination, you are less likely to be targeted for an infringement lawsuit because of Section 504(c)(2), the "good faith fair use defense."

Additional Resources

• Code of Best Practices in Fair Use for Scholarly Research in Communication
• Statement of Best Practices in Fair Use of Dance-Related Materials (PDF)

There are a variety of tools available on the web to assist you in analyzing whether a particular use weighs in favor of or against a claim of fair use. These tools draw on language in U.S. copyright law, court decisions, analysis by legal experts, and reports of government bodies. Despite their legal orientation, these tools are very accessible and useful for many purposes.

• Using the Four Factor Fair Use Test (University of Texas at Austin) - This site gives descriptions and examples of uses that weigh in favor of and against fair use and those "in the middle" that can be further beneficial in a fair-use analysis. The four factors are defined individually and in relation to one another.
• Fair Use Analysis Worksheet (Columbia University) - This is a printable worksheet that allows you to select uses that favor and weigh against fair use based on your desired use. It also includes brief descriptions of each factor.
• Fair Use Evaluator (ALA's Office for Information Technology Policy) - This is an interactive, step-by-step guide developed by the ALA to facilitate fair use analyses among educators.

Fair Use Court Cases

In addition to the tools above, you may also find it informative to review court cases where a claim of fair use was affirmed or denied.

• Categories of Key Court Case Summaries on Fair Use (Columbia University) - This site gives brief statements on the impact of each of the four factors in several landmark copyright cases.
• Summaries of Court Cases (Stanford University) - This site provides brief summaries and sorts cases by use going back more than twenty years.
• Fair Use Project (Stanford Law School) - This site follows active court cases regarding fair use, in addition to providing "legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom."

In the attempt to simplify some applications of fair use, certain guidelines have emerged over time. Originally, the U.S. Congress included as part of the legislative history for the Copyright Act of 1976 the most well-known set of guidelines, Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (cf. FSH 6580, section H), as well as Guidelines for Educational Uses of Music. These guidelines served as a model for subsequent draft guidelines published later in the 1970s and 1980s, such as Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes.

Later still, during the 1990s, the Conference on Fair Use (CONFU) was commissioned to address concerns about emerging digital technology. CONFU released draft guidelines on distance education, multimedia, images, electronic reserve services in libraries, and interlibrary loan. However, no consensus agreement has been achieved surrounding CONFU guidelines. They remain in draft form only and are not mandatory.

When considering such guidelines, it is important to remember that they are not the law. These guidelines and others attempt to express minimum standards for fair use. There may still be instances where use which does not fall within stated guidelines may nonetheless be permitted under fair use.