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Fair Use

What is Fair Use?

Fair use is a limitation placed on copyright that allows members of the public to make use of copyrighted works.

As described in Section 107 of the Copyright law, fair use includes use "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." When measured against the factors of fair use, these uses are not infringements of copyright.

Note that fair use can be applied to individuals--researchers, scholars, students--as well as to classroom instructors using copyrighted material for educational purposes.


The Factors of Fair Use:


Purpose and character of the use

  • Has the work simply been copied? If so, it may not be fair use.
  • Has the work been transformed in some way? If it is altered significantly, used for another purpose, or appeals to a different audience, the likelier it is fair use.
  • Is the work being used for nonprofit or educational purposes? If so, it is more likely to be fair use. However, there are additional considerations that educators must make when determining whether an educational use is fair.


Nature of copyrighted work

  • Is the work published or unpublished? Unpublished works are less likely to be considered fair use.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

Amount and substantiality of portion used

  • If the amount used is over 10% of the entire work, the use is more likely to be unfair.
  • Will it adversely affect the author's economic gain? Using the "heart" or "essence" of a work is less likely fair use.

Effect of the use on the potential market for the copyrighted work

  • The more the new work differs from the original, the less likely it is an infringement.
  • Does the work appeal to the same audience as the original? If so, it is more likely infringement. 
  • Does the new work contain anything original? If it does, it is more likely fair use.

The Time factor

  • Uses (particularly in the case of copying) must be brief, no more than the 10% mentioned above, and spontaneous.
  • A use is spontaneous If you realize you need to make copies of an article or a chapter close to the time the copies will be used. You can make copies for students officially enrolled in your class--so long as you only do this once. If you use something repeatedly--that is from semester to semester--, it is not fair use. To continue using copies in later semesters, seek permission from the copyright holder and pay fees if required.

Don't

Make multiple copies of works that could substitute for the purchase of books, publisher's reprints, or periodicals.

Copy the same works from semester to semester.

Copy the same material for several different courses at the same or different institutions.

Make multiple copies (that is for everyone in your class) more than nine separate times in a single semester.


What about the Internet? Isn't all that stuff free?

  • Easy to access does not mean free--as in free from copyright. Assume that all works are copyrighted.
  • Look for links to usage guidelines or permissions. If explicit guidelines exist, follow them.
  • Whenever feasible, ask copyright owners for permission to use their work. Keep a copy of your request for permission and the permission received.


A Note on "special works"...

  • These are "Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience."
  • Special works should never be copied in their entirety.
  • An excerpt of no more than two pages or 10%, whichever is less, is allowed.
  • The use of the copies should be for one course at one school.
  • The copies should include a notice of copyright acknowledging the author of the work.

Additional Information about Fair Use