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Copyright and Fair Use

What is Fair Use?

Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is the most significant limitation on the copyright holder's rights. Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors:

The purpose and character of the use:

  • Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
  • Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it is more likely to be considered fair use.
  • Is the use of the copyrighted work for nonprofit or educational purposes? The use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use.

The nature of the copyrighted work:

  • Is the copyrighted work a published or unpublished work? Unpublished works are less likely to be considered fair use.
  • Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
  • Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.

The amount and substantiality of the portion used:

  • The more you use, the less likely it will be considered fair use.
  • Does the amount you use exceed reasonable expectation? If it approaches 50 per cent of the entire work, it is likely to be considered an unfair use of the copyrighted work.
  • Is the particular portion used likely to adversely affect the author's economic gain? If you use the “heart” or “essence ” of a work, it is less likely your use will be considered fair use.

The effect of use on the potential market for the copyrighted work:

  • The more the new work differs from the original, the less likely it will be considered an infringement.
  • Does the work appeal to the same audience as the original? if the answer is yes, it will likely be considered an infringement.
  • Does the new work contain anything original?  If it does, it is more likely the use of the copyrighted material will be seen as fair use.

This is the factor that has changed how fair use is interpreted by publishers and by the courts. For example, the ability to easily find publishers addresses and copyright contact information on the internet, means that the "one semester without permission rule" is much more strongly enforced, and taken much more seriously by the courts. Another example, the ability to sell electronic copies of material over the internet means that publishers see almost any use as impinging on all potential markets.

Fair Use for Instructor

Copying by teachers must meet the tests of brevity and spontaneity:

  • Brevity refers to how much of the work you can copy.
  • Spontaneity refers to how many times you can copy.

According to the rule, the need to copy should occur closely in time to the need to use the copies. This is often referred to as the one semester rule. If you use something for one semester only it is likely to be seen as fair use. If you use something repeatedly, it is less likely to be considered fair use. The expectation is that you will obtain permission as soon as possible. Using something over a period of years is not within the spirit of the guideline.

The use of any copies should be for one course at one school.

The copies should include a notice of copyright acknowledging the author of the work.

Special works:

  • Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience are defined as special works.
  • Special works--children's books are the most obvious example--should never be copied in their entirety.
  • An excerpt of no more than two pages or 10 per cent, whichever is less, is the rule for special works.

NOTE:  It is recommended that teachers, faculty, or instructors consider both the special guidelines for instructor and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.