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:
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."
Fair Use Analysis Tools
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.
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.
Fair Use Guidelines
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.
Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.