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TL1700
Copyright Literacy in the Academic Environment


Fair Use

 

The foundations of the Fair Use Doctrine are in 19th century case law, but they were eventually codified in the Copyright Act of 1976. While it doesn't lay out any hard and fast rules as to what uses are or aren't "fair," the doctrine at least gives us the questions we need to ask of ourselves in order to determine if a particular use of another's copyright-protected work is fair. Most fair use falls into the categories of comment/criticism or parody. We know how vital our ability to comment upon and criticize others' works is to the educational process.

 

 

REMEMBER TO HOVER ! - FROM NOW ON !

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The diagram below illustrates several of the main tenets of what constitutes Fair Use. We will be exploring these in detail.

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In determining whether or not a particular use is fair, the law states that at least four factors should be taken into should be taken into consideration:

  • The purpose and character of the use
  • The nature of the work
  • The amount and substantiality of the portion used in relation to the work as a whole
  • The effect of the use on the market or potential market for the original work

Read through the excellent introduction to the factors of fair use with, Can I Use That? Fair Use in Everyday Life: A Workshop from the University of Minnesota Libraries linked at-
https://netfiles.umn.edu/users/nasims/Share/FairUseforFacultyRev10_2011.pdf

It is covered by a Creative Commons Attribution-NonCommercial 2.0 Generic license.

The diagram that follows is from the above document and illustrates some of the factors that can sway a fair use decision. It is important to note that these factors play out on a “sliding scale” as shown. Then, we’ll take a closer look at each of the four factors.


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The chart below summarized the four factors of Fair Use. Then, we’ll explore each in more detail

First Factor

What is the purpose and character of the use?

Second Factor

What is the nature of the work to be used?

Third Factor

How much of the work will be used?

Fourth Factor

What is the effect of the use on the market for the work?

Favors Fair Use Nonprofit
Educational
Personal
Teaching
Criticism &
      Comment
Scholarship &
      Research
News Reporting
Fact
Published

Small Amount

No Effect
Licensing/
   Permissions
    Unavailable

Favors Permission Commercial
For Profit
Entertainment
Creative
Unpublished
Large    Amount
Heart of the    Work  
Major Effect
Work is Made 
    Available to
    the World  

 


Fair Use Factor 1 - The Character of the Use

Favors Fair Use Weighs Against Fair Use
·Non-profit
·Instructional (available just for students, like Eagle Online)
·Transformative (criticism or parody
·Commercial
·Available to non-students -           (e.g. the HCC Learning Web)

LEARN MORE Factor 1: The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But be careful: Not all nonprofit educational uses are "fair." A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use. Courts also favor uses that are "transformative," or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is "transformed" into something new or of new utility, 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.

 


Fair Use Factor 2 - The Nature of the Work

Favors Fair Use Weighs Against Fair Use
·Published
·Non-fiction, factual
·Unpublished
·Creative or fictional
·Consumable (e.g. workbooks)

LEARN MORE Factor 2: 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. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; so, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.

 


Fair Use Factor 3 - The Amount of the Work Used

Favors Fair Use Weighs Against Fair Use
·Small portion
·Not central or of utmost significance to whole work
·Appropriate for intended purposes
·Large amount or whole work
·The “heart of the work”

LEARN MORE Factor 3: 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. Courts have ruled that even uses of small amounts may be excessive if they take the "heart of the work." For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic "scoop." On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full "amount," and this may not be a fair use. On the other hand, a court has ruled that a "thumbnail" or low-resolution version of an image is a lesser "amount." Such a version of an image might adequately serve educational or research purposes.

 


Fair Use Factor 4 - The Market Impact

Favors Fair Use Weighs Against Fair Use
·User owns original ·One or few copies made
·Not possible or difficult to acquire permission
·Stimulates market (e.g. a book review)
·Repeated use (semester after semester)
·Permission is available for sale
·Multiple copies, not for education<

LEARN MORE Factor 4: Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price. "Effect" is also closely linked to "purpose." If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.

 


Now that we know more about the four factors of fair use, how do we use this information? Even armed with this level of knowledge, determining fair use is not an exact science. Gray areas will likely remain. There are a few online tools that can be used to help in making and keeping a record of fair use evaluations. The below image links to one The Fair Use Evaluator at http://librarycopyright.net/resources/fairuse/ In the next section, we'll work on some real-world scenarios and apply fair use principles.

evaluator screen shot

NOTE: When you have completed this section click on the link to Check Your Knowledge.

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