Copyright: Using Copyrighted Materials

What is Fair Use?

The U.S. Copyright Office states, “One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

The following summary explains the significance of the factors as they relate to the AACC academic community. Always keep in mind that fair use is a balancing act. It exists to permit uses that are socially valuable, but which cannot be anticipated or encompassed within definitive rules laid down in advance. You must apply ALL four factors to arrive at a conclusion.

The Purpose and Character of the Use

Nonprofit educational purposes are generally favored over commercial uses. However, educational purposes are not a fair use to circumvent purchasing a work. Transforming the work into something distinct from the original in a scholarly study may be considered a favored fair use.

Examples:

•       Instructors creating files of full text articles, chapters, and other material for
        enrolled students using a learning management system with passwords.
  
  
•       Clipping, altering, and reworking materials for teaching.
  
  
•       Quotations incorporated into paper.
  
  
•       Pieces of a work mixed into a multimedia project for teaching purposes.

 The Nature of the Copyrighted Work

Qualities and characteristics of the work being used could demand greater protection, or encourage us to build upon the work to expand growth and dissemination of knowledge.

          Example:    

•        Published works of nonfiction, such as mathematics, sociology, and politics.

The Amount or Substantiality of the Portion Used

According to the U.S. Copyright Office, “there is no specific number of words, lines, or notes that may safely be taken without permission.” The “amount” is evaluated relative to the entire document and the intended purpose. If the intent is to use the “heart of the work”, it may not be considered favorably.

Examples:

•        Short clip from a motion picture, but not the most extraordinary or creative
         elements of the film.

•        Short quote from an article, but not the most important point.

•        Critical comments
  
  
• Parody

The Effect of the Use on the Potential Market for or Value of the Work

Does the use replace what should have been a purchase of the work?  Posting a feature film in the LMS or website harms the market for the work or its value. This factor is constantly tested as new markets emerge.

Examples:

• Internet document, blog, picture, or other copyrighted work properly posted by the rightful owner clearly allowing use, such as Creative Commons permissions.

• Instructors creating files of full text articles, chapters, and other material for enrolled students using a learning management system with passwords. Including sizable quotations, excerpts of charts and images, and altering the context of the original works with original criticism are less likely to impede the market.

Now you have general examples to help guide you when using the Fair Use Checklist. See the Faculty Scenarios & Model Permission Letters tab for more in-depth examples.

Fair Use Checklist (PDF)

Introduction to the Checklist: The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).  Fair use is determined by a balanced application of four factors set forth in the statute: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for or value of the work used.  Those factors form the structure of this checklist.  Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist: A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap: As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Further Information: You can learn more about fair use from many sources, including the website of the Copyright Advisory Office of Columbia University: www.copyright.columbia.edu.

Creative Commons Attribution Only (http://creativecommons.org/licenses) Buttler, Dwayne, and Kenneth Crews."Fair Use Checklist." Columbia University Copyright Advisory Office, 2011.Web.14 Jan. 2013.