Copyright @ SSC: Fair Use

There are many MYTHS about Fair Use. Contrary to popular belief, Fair Use does not automatically protect all educational uses of copyrighted works. Inclusion of a copyright notice and/or providing acknowledgement of authorship does not constitute Fair Use.

Converting the file format of audio and video recordings is completely forbidden by copyright law at this time. In order to use any excerpts in class or classwork which do not come directly (during use) from the original purchased recording, written permission must be obtained from the copyright owner.

There is NO Fair Use exemption for this law.

Fair use is a set of broad criteria identified in Section 107 of the Copyright Act of 1976 that allows individuals to use limited portions of a work in the name of criticism, teaching, scholarly research, and news reporting without first having to obtain permission from the work’s copyright holder. Consideration of all four of the factors below is required before proceeding with use, though all factors do not have to be in favor of use to make it a fair use. Ideally, however, all four factors will be satisfied before using an item.

The four factors are:

• What is the purpose of the use?

  If the purpose of the use is non-profit and/or educational in nature, the use is more likely to be protected under the doctrine of fair use than if the intention is to use the material in a for-profit manner.

  Please note that educational use alone is not sufficient to constitute fair use.

  There is also allowance made for a transformative use of material. Fair use permits the transforming of an original work to give it new expression or meaning. One common example of this is using original content in a parody.

• What is the nature of the copyrighted work?

  The concept of fair use favors works considered factual in nature (i.e. created for the purpose of criticism, commentary, teaching, or scholarship) over works that are original fictional or artistic expressions. Also, since copyright law grants an author the right to first publication, greater accommodation is given when using published versus unpublished works.

  Copying material intended to be purchased (e.g. chapters from a textbook or an instructional module) is not protected under the idea of fair use.

• What is the amount or substantiality of the item used?

  While the doctrine does not define a set amount or percentage of a work that can be used and still be considered fair use, as a rule of thumb the smaller the amount of the work you use the more protected you are. For example, using ten pages of a 300-page book is more likely to be considered fair use than using ten pages of a 60-page book.

  Regarding substantiality, even using a very limited portion of a work may not be allowed if that portion is what is referred to as the ‘heart of a work.’ In a fictional work, this might be a key or climactic plot scene; in a non-fictional work it may be a few pages that summarize the argument of the entire text, for example.

• What effect will the use have on the potential market for the work?

  Copyright law grants an author the right to realize financial gain from the creation and sale of his work. If usage of the material negatively impacts the author’s ability to realize revenue, it will not be protected under the doctrine of fair use.

Please remember that the concept of fair use is very general and that there are no concrete measures as to what is fair use and what is not. Fair use is open to interpretation and dependent upon the individual circumstances, and the individual seeking to use a copyrighted work must weigh all four factors and arrive at the conclusion that his usage is a reasonable and fair usage of the material before proceeding.

For More Information

Stanford Copyright and Fair Use Center

Arizona State University Libraries on Fair Use

Code of Best Practices in Fair Use for Online Video

Fair Use Guidelines for Educational Multimedia

The difference between “fair use” and a copyright “infringement” is not always easy to determine. Claiming fair use requires a very circumstance-specific analysis of the intended use of a work, based on the four factors. Here are three examples that illustrate this challenge: