Understanding the Fair Use Doctrine

The TEACH Act is not a complete defense against copyright infringement. Many uses of copyrighted materials are simply not addressed in this Act and leave the University, employees, and students subject to infringement liabilities. The Fair Use Doctrine offers some remedy to this situation as a determination of fair use allows individuals to make fair use of copyrighted materials without the copyright owner’s permission. Determining whether the use of copyrighted materials qualifies as fair use requires a reasoned and balanced application of the four fair use factors set forth in Section 107 of U.S. Copyright Law. The four factors are:

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

One must proceed with caution when applying the four factors for making a determination of fair use. Each of the four factors must be given consideration in tandem to determine whether the use of copyrighted materials is lawful. The use of copyrighted materials for educational purposes(i.e., teaching and research) alone does not constitute fair use. Consideration must also be given to the nature of the copyrighted materials, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. One must remember that the Fair Use Doctrine is always subject to the interpretation of the Courts. Individuals should seek permission to use copyrighted materials if there is any question about whether use of the materials constitutes fair use.

Understanding the Four Factors

This section contains a brief description of the four factors used to determine fair use. Guidance is provided to help one make a determination of fair use.

Purpose and character of the use. Nonprofit educational uses of copyrighted materials typically refers to activities that are confined to the University in support of nonprofit education. These uses of copyrighted materials are typically favored by the Courts over commercial uses of the materials as the materials are not being used for profit or gain. The Courts also have a tendency to side with “transformative” uses of copyrighted materials. Such uses add to or change the original work to derive a new expression, meaning, or message as opposed to generating a mere reproduction of the original work. Transformative uses of copyrighted materials under the Fair Use Doctrine may include, but are not limited to, quotations incorporated into a paper, pieces of a work integrated into a multimedia product for teaching, and a critical analysis of a work.

Multiple copies of a copyrighted work for classroom use is also permitted under the Fair Use Doctrine.

Nature of the copyrighted work. The Fair Use Doctrine does not regard all copyrighted works the same. Fair use is more easily demonstrated with works of nonfiction as opposed to works of fiction (i.e., novels, short stories, poetry, and modern art images). Works of fiction are considered to possess high levels of creativity not present in works of nonfiction. Individuals must limit their uses of these creative works to portions of the works that are relevant to the purpose favoring fair use.

Use of “consumable” materials such as test forms and workbook pages may not constitute fair use, particularly in cases where the materials are intended for repurchase. Instructors must verify the “conditions of use” for consumable materials.

Amount of the work used. There are no exact measures for the quantity of a work that would be regarded as fair use. Quantity must be evaluated relative to the length of the work in its entirety and the amount of the work needed to facilitate the instructional activity for which the work is being used. Copying an entire work or multiple parts of a work would not be considered fair use. Images should be limited to “thumbnails” or low-resolution versions of the images.

Effect on the value of or market for the work. The purpose of use factor in the Fair Use Doctrine is closely linked to the effect on the market factor. Works used for commercial purposes are more likely to have an adverse market effect than works use for nonprofit educational purposes. This potential for an adverse market effect must be weighed when determining fair use of a particular work.

Please note that a determination of fair use is contingent on whether all four factors are satisfied.

Adapted from the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, http://www.copyright.gov/title17/92chap1.html#107