Before making a photocopy, scan, or sharing an article with a friend, STOP and consider whether your sharing of copyrighted material is lawful!
Sometimes there are reasons why people should be allowed to use copyrighted material in certain amounts and for certain purposes. This is when “Fair Use” applies. Fair Use is a part of copyright law that states that “use of a copyright work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (Section 107 of the Copyright Act).
But Fair Use isn’t as straightforward as we might like it to be. To determine if a use might be consider “fair,” you need to consider four factors and weigh the “pros” against the “cons.” What are the four factors of Fair Use?
Four Factors of Fair Use
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Is your use for the purpose of criticism, comment, news reporting, teaching, scholarship, or research? If it is, you have a stronger argument for claiming Fair Use. (Also keep in mind that parody is protected by the First Amendment and counts as “criticism!” Another element to keep in mind is whether your use of the work is transformative. Uses that add something new to the work, giving it a new purpose or different character, are more likely to be considered fair.
Nature of the copyrighted work: Whether a work is considered more creative and imaginative (e.g., a song, a novel, a movie) or more factual (e.g., a non-fiction book, a news article) has an impact on whether use of that work is more or less likely to be considered fair use. Using a more creative work is less likely to support a claim of fair use than using a factual work. Likewise, use of unpublished works is less likely to be considered fair than published works. However, this does not mean that you can never make use of creative or unpublished works!
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the copyrighted work is being used? While there are times when use of an entire work can be said to be fair, in general using smaller amounts of the work (in relation to its entirety) are more likely to be found fair. If, however, the selection used can be considered the “heart” of the work, the use can be found to be not fair.
Effect of the use upon the potential market for or value of the copyrighted work: What effect, if any, does the use have on the value or marketability of the original work? If there is no effect, the use is more likely to be considered fair. If the use devalues the original work, the use is likely not fair.
You will often find that your intended use of a work results in some “fairs” and some “not fairs.” It is up to you and your good sense to determine whether your use is truly fair or not!
Image credit: "fair use classroom poster draft" by tvol is licensed under CC BY 2.0.
