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Copyright Guide: Understanding Fair Use

Guide to copyright issues for HIU faculty.

Fair Use Checklists

The checklists below can be used to determine if your particular use falls under the Fair Use exemption. As you work through the checklist, you will get a sense of which side of the equation your use falls-permissible or not.

Fair Use Online

This summary, adapted from the ACRL statement on fair use and electronic reserves (Nov. 2003), may assist you in determining the fair use of electronic materials to be used in your online courses. It illustrates ways in which libraries have applied fair use criteria in the development of best practices for e-Reserves.

First factor: The character of the use is in support of nonprofit education.

Second factor: The nature of the work to be used may include text materials (both factual and creative) and may serve the interests of faculty and students who study music, film, art, and images.

Third factor: The amount used considers the relationship to the whole of the copyright owner’s work. "Because the amount that a faculty member assigns depends on many factors, such as relevance to the teaching objective and the overall amount of material assigned, [we] may also consider whether even the entire work is appropriate to support the lesson or make the point."

Fourth factor: The effect of the use on the market for or value of the work is minimized by limiting access to students within a particular class or classes and terminating student access at the end of a relevant term. We may determine that if the first three factors show that a use is clearly fair, the fourth factor does not weigh as heavily.

Summary
While there is no guarantee that a practice or combination of practices is fair use, such certainty is not required to safely implement e-reserves. The law builds in tolerance for risk-taking. 

Section 504(c)(2) of the Copyright Act provides special protection to nonprofit libraries, educational institutions and their employees. When we act in good faith, reasonably believing that our actions are fair use, in the unlikely event we are actually sued over a use, we will not have to pay statutory damages even if a court finds that we were wrong. This demonstrates Congressional acknowledgement of the importance of fair use and the importance of our using it!


Association of College and Research Libraries. Statement on fair use and electronic reserves. November 2003. (http://www.ala.org/acrl/publications/whitepapers/statementfair)

Understanding Fair Use

Fair Use is one means by which copyrighted works can be used under certain circumstances without first obtaining permission of the copyright holder. Fair Use is limited, but flexible, and is commonly used in educational settings. Making a Fair Use determination is not a simple "yea or nay" decision.

Conducting a Fair Use analysis requires weighing four factors for each individual use, and seeing if, on balance the use is a fair one. Sometimes, the use is clear-cut. Other times, it's a judgment call, and two people analyzing the same situation can come up with different outcomes. Such is the nature of Fair Use.

The four factors are:

  1. purpose
  2. nature of the publication
  3. amount
  4. market effect

Each use is evaluated individually by doing a Fair Use test. Legally, there is no maximum number of pages nor percentage of the whole that determines Fair Use.

Questions?

What is "fair use?" How does it affect copyrighted material?

Fair use” is a defense to an allegation of infringement under the U.S. copyright law that excuses otherwise infringing limited use of portions of a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. There are no black - and - white rules for determining whether a particular activity may be considered a permissible fair use. Instead, Section 107 of the Copyright Act establishes four basic factors that must be considered in deciding whether a use constitutes fair use.

These factors are:

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

No one factor alone determines a person's right to use a copyrighted work without permission.

Is all copying by educational institutions fair use?

No. Although Section 107 of the Copyright Act includes teaching, scholarship, and research along with making “multiple copies for classroom use” among the uses of copyrighted works that may qualify as fair use, none of these uses automatically qualifies as a fair use. Both Congress and the Supreme Court have rejected the notion that all "educational uses" or all uses by educational institutions are fair uses. Whether copying for these or any other uses constitutes “fair use” must be determined, within the facts and circumstances of each particular use, by application of the four statutory criteria enumerated in Section 107. Be aware that the commercial or for-profit nature of custom coursepacks (anthologies) compiled and sold on college campuses weighs against the first factor of “fair use” (see question 5 above) even though such use lies within an educational setting. Such use requires permission directly from the publisher, or from the publisher’s licensing representative, such as the Copyright Clearance Center. Section 110 of the Copyright Act contains limited exemptions for certain uses of copyrighted materials in “face-toface” classroom situations or in "instructional broadcasting" programs conducted by nonprofit educational institutions, but there is no blanket exemption from copyright liability for educational uses or uses by educational institutions.

Are there guidelines for educators and students to decide what is a fair use?

Yes. To help students and educators decide whether fair use permits them to copy a work without permission, representatives of educators, authors, and publishers have created several sets of negotiated guidelines. Two sets of such guidelines, known as the "Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals" and the "Guidelines for Educational Uses of Music," were explicitly accepted "as part of their understanding of fair use" by the House and Senate conferees when Congress enacted the most recent comprehensive reform of U.S. copyright law in the Copyright Act of 1976. (See Guidelines for Classroom Copying.)

For more information about fair use and guidelines, ask the U.S. Copyright Office to send you Circular 21 - Reproduction of Copyrighted Works by Educators and Librarians. The Copyright Office can be reached at (202) 707-9100, and at www.loc.gov/copyright/circs.


National Association of College Stores. Q&A Concerning Copying Print and Digital Works. (http://www.nacs.org/toolsresources/cmip/copyright/questions/copying.aspx)

A Fair(y) Use Tale

Everyone knows Disney closely guards its copyrights. Here is a clever YouTube video using Disney images to teach about Fair Use. 

An educational video on copyright by professor Eric Fadden at Bucknell University. http://www.facstaff.bucknell.edu/efaden/

Subject Guide

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