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Copyright for Educators: A Guide to the Law and Fair Use: Fair Use

This guide leads to resources that will help educators learn more about copyright and fair use and may therefore be of help in answering questions about using copyrighted content in the classroom.

Fair Use Guidelines Under Copyright Law

There are exemptions that allow copyrighted works to be used in certain situations and under certain circumstances. One of the more widely known situations is non-profit educational use. While this is mostly helpful to higher education, it does not mean that all copyrighted works can be used in entirety by educators without payments to the copyright holder.

This page of the guide provides a variety of information sources that help to explain how fair use works. For example, there are explanations of the four tests for establishing if an intended use of copyrighted material can be done under the fair use guidelines. There are links to resources for determining if a use is a fair use.

Because every situation can be unique, applying the guidelines for fair use is not a one size fits all solution. Just as with copyright there are gray areas there fair use could be open to interpretation. When in doubt it may require seeking the assistance of your library liaison or, in a particularly complex situation, it may require advice from university counsel.

Fair Use Resources

How Much Can You Use?

One of the most common questions faculty have about fair use is "How much can I use"?

For example:

Can I scan and share with my students three chapters from this copyrighted book?

Can I upload a 30 minutes for a documentary to my course site?

Can I put more than five images from this photography site into my slides...or fewer than five?

Unfortunately there are usually no exact "yes that's fine" or "no you can't do that" answers.

Determining fair use is more of a "well it depends" situation. So how do you arrive at "how much" or possibly even "should I be using this at all"

The process may be aided by a tool such as the Fair Use Evaluator ,which is a step-by-step set of questions to help you decide if your use is a fair use. (see link below image)

this is an image of a screenshot from the homepage of the fair use calculator

 

To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision

To determine whether a use is or is not a fair use, always keep in mind that you need to apply all four factors. For example, do not jump to a conclusion based simply on whether your use is educational or commercial. You still need to evaluate, apply, and weigh in the balance the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work. 

FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE

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 or meaning, 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.


 

FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK

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; consequently, 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. 

 

FACTOR 3: THE AMOUNT OR SUBSTANTIALITY OF THE PORTION USED

Although the law does not set exact quantity limits, 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.

 

FACTOR 4: THE EFFECT OF THE USE ON THE POTENTIAL MARKET FOR OR VALUE OF THE WORK

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.



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