Understanding fair use is a very daunting task for most of us– and for good reason. When it comes to fair use, there are no clear answers. The doctrine is intentionally open and flexible, and without it, every time anyone wanted to use even a portion of copyrighted material, they would have to obtain permission from the copyright holder. This is why Fair Use Week was created - to highlight and promote the opportunities preserved by fair use. Fair use promotes freedom of expression and enables the exchange of information, allowing for criticism and comment, news reporting, as well as teaching, scholarship and research.
Section 107 of the Copyright Act provides the framework for determining whether something is fair use and identifies certain types of uses. In this section, we get the four fair use factors:
- Purpose and character of the use, including whether the work is being used commercially or is for nonprofit educational purposes.
- Nature of the copyrighted work (i.e. if it is fiction or nonfiction).
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole .
- Effect of the use upon the potential market for or value of the copyrighted work.
It is important to note that all four factors carry equal weight in determining fair use - you must consider all four factors in order to make a full evaluation. Contrary to what you might have heard, just because something is being used for education does not automatically mean it is fair use!
So what does this mean for educators?
Generally speaking, using excerpts of content that directly tie to your learning objects tend to weigh strongly in favor of fair use. While there is no one magic amount that will always be considered fair use, many guidelines such as our copyright policy, are informed by related judicial decisions. For example, if you are distributing excerpts from a book, you can typically rely on being able to use no more than one chapter or 10%, and if you’re using a journal, using only one article at a time will generally be acceptable. While there is an argument for potential market harm, it is important to remember that all factors are equally important, and there are very rare situations where your use won’t weigh against at least one of the factors. Remember, fair use is a balancing act. Here are some guidelines to help you stay balanced within fair use as an educator:
- Purpose of the Use
- Materials should only be used for specific educational purposes.
- Choose works that will enhance students’ understanding of the educational objectives of the course.
- Nature of the Work
- Fair use is used more conservatively with creative works, so be especially careful to not use large excerpts from novels, short stories, poetry, etc.
- Instructors should not distribute copies of test forms and workbook pages that are meant to be used and repurchased.
- Amount of the Work
- Materials shared by the instructor should generally be limited to brief excerpts from longer works. For example, a couple of chapters from a book, an individual article from a journal, individual news articles, clips from a film, etc.
- The amount of the work used should be related directly to the educational objectives of the course.
- Effect of the Use on the Market for the Original
- The instructor should consider whether the portion copied or shared would harm sales of the copyrighted material.
- Materials used in the class should include a citation to the original source of publication and a form of a copyright notice.
- The instructor should consider whether materials are reasonably available and affordable for students to purchase.
If you are still unsure whether your use of copyrighted materials falls within fair use, review the Fair Use page on the Copyright Library Guide or take our Understanding Fair Use tutorial. Fair Use really depends on the context. Luckily, there are many fair use guidelines available to help you make an informed decision on whether or not your use is fair.