Fair use is a provision in copyright law that:
- Allows some uses without permission
- Is very fact-specific
- Considers both the work and the nature of the use
- Favors internal over external use
“[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 USC §107
The full text of Section 107, which addresses fair use in copyright law, may be found at 17 USC Section107: Limitations on exclusive rights: Fair use.
Fair Use Factors
The fair use doctrine of copyright law is possibly the most difficult section of the law to apply, particularly to digital uses of works.
The fair use provision of copyright law is intended to provide reasonable access to works without permission, when the use is limited and in the public interest rather than for commercial gain.
It is important to recognize that this provision does not grant individuals a broad right to run through the four factors and determine that their work is fair and proceed with impunity.
Rather, this provision sets forth some of the criteria to be used in evaluating whether or not a particular use is fair. There are no absolute measures for any of these factors and in the case of a dispute, only a federal court may rule on whether or not a particular use is fair.
Four Factors of Fair Use
In determining whether or not a particular use is fair, the law states that at least four factors should be taken into consideration:
- The purpose and character of the use
- The nature of the work
- The amount and substantiality of the portion used in relation to the work as a whole
- The effect of the use on the market or potential market for the original work
Is the use fair?
If you want to use a work for an educational purpose, does this mean the use is fair? No, not always. The fair use analysis must consider all four factors and an educational use may not be fair, particularly if the use adversely impacts the market for the original work.
For example, making copies of an entire textbook so that students don’t have to purchase their own copies of a text is not likely to be considered a fair use. Copying a few passages or a chapter of a textbook may be.
Will your use of a work mean that others do not have to purchase a copy of the work? Or will it otherwise impact the market for the work? If so, your use may not be a fair use.
As a practical guide:
- Using a small portion of a work is favorable to using a substantial portion
- Use of a work to provide commentary in an educational setting is favorable to using a work for commercial enterprise
- Use of factual works is favored over using creative works of fiction
- Minimal or negligible impact on the market for the work is generally viewed favorably
Remember that all four factors should be considered. For help with this analysis, contact UW CoMotion.
Fair purpose, fair use?
Maybe. This question comes up frequently and it arises from a casual reading of the first sentence of the fair use provision in which several examples of purposes of use are listed. This often yields an interpretation that using any copyrighted work for the purpose of teaching or research is a fair use. This is not correct.
The purpose of the use is one factor for consideration in determining whether or not a use is a fair use, but this is not the only consideration. Some educational uses of copyrighted works are fair uses, and some uses are not.
Is your use fair?
Members of the academic community rely on Section 107 for much of what they use for internal educational purposes. But as we move to educational models where course materials are distributed over the Internet or broadcast on educational television, fair use may no longer apply so broadly.
Educators and the institutions they work for are held to higher standards if they wish to use copyrighted materials without permission (see the TEACH Act section for more information).
In considering whether fair use is appropriate for your purpose, you should carefully consider how your use of copyrightable materials owned by others will impact an existing or potential market for the work, even if the work is used for non-commercial, educational purposes.
Reliance on fair use to incorporate the works of others in multimedia or digital content to be commercialized or distributed broadly may not be appropriate. For assistance on evaluating whether or not fair use applies to your project, contact UW CoMotion.