Definition of Fair Use
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U.S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- 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.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” (U.S. Copyright Office Fair Use Index)
Special Rules for Classroom Use
Section 110(1) of the copyright law permits the performance or display of a work by instructors or students in the course of face-to-face teaching activities in a classroom. This provision does not apply to uses in distance education, which must be assessed under section 107 (fair use) or a narrower, more complex provision of section 110.
Resources:
- Exceptions for Instructors Copyright eToolFrom the ALA Office of Information Technology Policy: Guides you through the education exceptions in U.S. Copyright law
Guidelines / Best Practices
- Code for Best Practices in Fair Use for Media Literacy EducationFrom the Center for Social Media, School of Communication, American University
- Code for Best Practices in Fair Use for Online VideoFrom the Center for Social Media, School of Communication, American University
- Code for Best Practices in Fair Use for OpenCoursewareFrom the Center for Social Media, School of Communication, American University
- Code for Best Practices in Fair Use for Scholarly Research in CommunicationFrom the Center for Social Media, School of Communication, American University
- Code of Best Practices in Fair Use for the Visual ArtsFrom the College Art Association
- Documentary Filmmakers’ Statement of Best Practices in Fair UseFrom the Center for Social Media, School of Communication, American University
- ISSUE BRIEF: Streaming of Films for Educational PurposesPrepared for the Library Copyright Alliance (February 2010)
- Orphan Works: Statement of Best PracticesSociety of American Archivists, 2009
- Statement of Best Practices in Fair Use of Dance-Related MaterialsFrom the Dance Heritage Coalition, 2009
Fair Use Resources
- Code of Best Practices in Fair Use for Academic and Research LibrariesThis code of best practices in fair use was devised specifically by and for the academic and research library community. It enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself.
- Copyright and Intellectual Property ToolkitThis guide functions as a Copyright and Intellectual Property Toolkit created by the University of Pittsburgh.
- Copyright on CampusSix minute video from the Copyright Clearance Center that provides a succinct overview of copyright issues of interest to the campus community.
- Electronic Frontier Foundation - Intellectual PropertyLatest news and resources about Fair Use and Intellectual Property issues from the EEF
- Fair Use FundamentalsConcise visualization of Fair Use, from fairuseweek.org.
- “A Fair(y) Use Tale”A 10-minute video by Eric Faden, produced by the Media Education Foundation
- “Bound by Law: Tales from the Public Domain”Graphic novel from the Center for the Study of the Public Domain at Duke University School of Law School
Special Rules for Libraries & Archives
Section 108 of the copyright law provides libraries special privileges for uses related to preservation and for lost, stolen, damaged, or deteriorating works; copies for library patrons; and copies for other libraries through interlibrary loan.
Resources:
- Reproduction of Copyrighted Works by Educators and LibrariansFrom the U.S. Copyright Office