“Fair use” is an extremely helpful exception to the exclusive rights of copyright owners. Prior to deciding whether using another’s work is considered fair use, a user must ensure that the work is first protected by the Copyright Act. If it is not, anyone may freely use the work in the absence of permission from the copyright owner. The following works are not protected by the Copyright Act:
- Works that lack originality;
- Logical, comprehensive compilations (telephone book);
- Unoriginal reproductions of public domain works (including photographs);
- Works in the public domain;
- Freeware (not shareware, but actually, expressly, available free of restriction-ware);
- United States Government works;
- Facts; and
- Ideas, processes, methods, and systems described in copyrighted works.
Fair use permits certain uses of certain works for certain purposes, taking the interests of copyright owners into consideration in the evaluation of each of the four factors. “The fair use of a copyrighted work, including such reproduction in copies or phonorecords or by any other means specified (e.g. electronic means), for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of the Copyright Act. For additional information regarding “electronic means”, refer to the sections entitled “Distance Education”, “Electronic Reserves”, and “Educational Multimedia”.
In determining whether the use made of a work is “fair”, four (4) factors must be analyzed. Fair use is not a blanket exemption for educators.
The columns referenced below contain factors that assist users in deciding whether the use of another’s work constitutes fair use. The factors in the left hand column entitled “fair use” indicate that one’s use of a work is more likely than not fair. The right hand column entitled “permission” identifies types of factors that make it less likely that an individual’s use of a work is fair. The middle column entitled “other considerations” contains factors that may weigh either in favor of or against identifying the use as fair use.
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for a nonprofit educational purpose: Educational uses are preferred over commercial uses. A dissertation is fundamentally “educational”, but when made available for sale through a publisher, it takes on some characteristics of a commercial product.
- News reporting
- Otherwise “transformative use”
If the analysis ended after the first factor, there would be an educational use exemption. Since there is no educational use exemption, the three (3) remaining factors must be assessed as a weighing and balancing test.
(2) The nature of the copyrighted work: Carefully evaluate the work to be used. Is it a scholarly work? Is it the type of material from which quoting is normal, expected, or even encouraged? Fair use of these works may be greater than for other materials. Is it published? Although it may seem counterintuitive, fair use for unpublished manuscripts is often more restrictive than for published works.
- A mixture of fact and imaginative
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This factor may be intuitively the easiest to assess, but still without quick answers. Study the substantiality of quotations or other uses of copyrighted works. Evaluate whether the central “essence” of the original work is to be used. Evaluate whether the amount to be used is essential for serving an educational purpose; and
- Small amount
- Not applicable
- More than a small amount
(4) The effect of the use upon the potential market for or value of the copyrighted work: Does the proposed use compete with or supersede the original work? Is your copy or excerpt likely to substitute for purchasing the original? The bottom line is whether the excerpt or copying is so extensive that it reasonably displaces the value or potential sale of an original. Thus, even a short excerpt may not be fair if it is a substantial portion or the central significance of a commercially valuable work.
- After evaluation of first three factors, the proposed use is tipping towards fair use
- Original is out of print or otherwise unavailable
- No ready market for permission
- Copyright owner is unidentifiable
- Competes with (takes away sales from the original)
- Avoids Payment for permission (royalties) in an established permissions market
Each factor must be considered in the fair use equation. All academic uses are not fair and all commercial uses are not unfair. While not exhaustive, the following uses constitute 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.