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Fair Use Exemption

The Fair Use Exemption is the primary defense used by individuals who wish to legally duplicate, display, derive, distribute or publicly perform copyrighted materials without the need to obtain permission from the copyright owner. It is applied very broadly by the courts, yet the law itself is very brief. Here it is in its entirety:

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

These four factors are weighed by the courts to determine whether or not a work qualifies for fair use protection. There is no definitive yes or no to fair use. For each situation and every circumstance all four factors must be weighed. An unfavorable use in one factor does not automatically mean the work cannot be used. As users you can analyze these four factors yourself to determine the likelihood of your use qualifying as fair use or not. The risk to you is related to the amount of fines you might have to pay in the event you loose a law suit. The key to reduced liability relates directly to your ability to present proof of a "good faith effort". To that end it is important that you keep a record of your fair use analysis to establish your "reasonable and good-faith" attempts to apply fair use. If fair use does not apply, you must get permission from the copyright owner or don't use the material.

Thanks to Dwayne Buttler and Kenneth Crews a Fair Use Checklist has been devised at the Copyright Management Center of Indiana University. They have made this checklist available to anyone who desires to use it. This tool has been designed "to help educators… focus on the circumstances that are important to the evaluation of fair use and [to provide] a means for recording your decision-making process". The checklist is derived from the four factors and from the judicial decisions interpreting copyright law. In using the Fair Use checklist, check all the pertinent issues whether in favor of or opposed to fair use. Sometimes, some issues will weigh more than others.

This and other fair use calculators are available online and can be consulted as an aide in ascertaining whether or not your use is a defensible fair use. However, none of them should be consulted without first understanding the fair use factors themselves and how they relate to one another.

Let's take a closer look.

The four fair use factors are Purpose and character of the use of the work being copied, The Nature of the work, the Amount and substantiality of the portion being used in relation to the whole, and the Effect of the use on the Market.

PURPOSE

The first factor to consider is the Purpose and character. That is, what are you going to use it for? Is it for educational use, news reporting or criticism? The law specifically state's "…the fair use of a copyrighted work, … by …teaching … scholarship, or research, is not an infringement of copyright." Educational use especially in a nonprofit institution weighs in favor of Fair Use.

Uses likely to favor Fair Use

  • Nonprofit Educational
  • Teaching
  • Transforming
  • Parody
  • Criticism
  • News reporting
  • Restricted access

 

Uses likely to oppose Fair Use

  • Commercial
  • Entertainment
  • Bad-faith behavior
  • Denying credit to original author

 

If it is a commercial use, you need to consider whether or not you are duplicating or transforming the work. The courts favor transformation of a work over exact duplication. Are you making a derivative of the original or are you making something quite creative that is different than the original intended purpose?

Restricted access is particularly important when uploading material onto a Web page. Restricting access to only your students and only for a limited period of time will weigh in favor of your freedom to use it.

NATURE

The next factor to weigh is the Nature of the work. The more creative and artistic the original the less favorable it is to Fair Use. Also unpublished works are less favorable than published works. Facts cannot be copyrighted so the more factual the copyrighted work the greater the work favors Fair use.

Uses likely to favor Fair Use

  • Factual
  • Nonfiction
  • Important to educational objectives
  • Published
  • Out of print

 

Uses likely to oppose Fair Use

  • Creative (music, poetry, play scripts, fictional novels, short stories, paintings and the like)
  • Fictional
  • Artistic
  • Unpublished

 

AMOUNT

How much of the work is being copied? A small percentage of the work in relation to the whole will find favor with Fair Use, but only if that small percentage is not the heart of the work.

Uses likely to favor Fair Use

  • Small percentage
  • Portion not central or significant to entire work
  • Portion appropriate for educational objectives

 

Uses likely to oppose Fair Use

  • Substantial in proportion to the whole
  • Heart of the work

 

Here are some examples explaining the "heart of the work". The famous segment of the I Love Lucy show in which Lucy is working in the chocolate factory is a classic scene and worth a fortune to the copyright owners. So although it is only a few minutes out of the whole episode it is the heart of not only that particular episode but of the entire Lucy show and if you want to use it you must pay a fortune for it. The chariot race from Ben Hur again a very small percentage of the whole movie but it has come to be symbolic of the whole and using it would weigh against fair use.

MARKET EFFECT

Market Effect is linked closely with Purpose. If your purpose is commercial than market effect is presumed. Many works are being marketed to the academic community and it is being argued that even educational uses have direct adverse market consequences and so duplicating these materials maybe unfavorable to Fair Use.

Harm to the potential market must also be considered. It does not matter that a market does not currently exist only that it could exist and be hurt.

Uses likely to favor Fair Use

  • Does not hurt the current market or the potential market (does not compete in sales of the original)
  • Copy is not a substitute for the original
  • Limited copies made
  • Copy is not for sale or widely distributed
  • Copy is not published or posted online
  • No similar product on the market
  • Original is lawfully acquired
  • Lack of licensing mechanism
  • Parody - has different market
  • Cannot get permission (efforts must be documented)

 

Uses likely to oppose Fair Use

  • Hurts the market or POTENTIALLY hurts the market (competes in sales of the original)
  • Copy can substitute for the original
  • Numerous copies made
  • Work is widely distributed or electronically made available to the world
  • Repeated or long-term use
  • Affordable permission available
  • Reasonable licensing available

 

Remember all four factors apply. A negative mark in one area does not mean Fair Use does not apply. On the other hand one positive mark in favor of Fair Use does not mean Fair Use does apply. You will discover when you fill out your checklist that some items tend to weigh more heavily than others and sometimes they negate each other. For instance, it's a small portion but it's the heart of the work. And although the courts have said that all four factors are equal, the reality is that market effect weighs more heavily than any of the others.

So, is your use Fair Use? You're asking the wrong question. Rather you must ask "In good faith is it likely to favor fair use? By evaluating these four factors, the best you can hope for is to demonstrate a "reasonable and good faith effort" for a favorable fair use defense. A definite "Yes" or "No" to fair use can only be determined by the courts. If you get sued and your use is found to be unfavorable to fair use and you cannot demonstrate a "good faith effort" in applying the four fair use factors, your fines will be the highest allowed by law ($30,000 per incident).

However, if you can demonstrate a "good faith effort" in applying the four fair use factors and you get sued and your use is found unfavorable your fines will be minimal ($300 maximum fine). It may even be that you won't be fined at all (this is only true for employees or agents of nonprofit educational institutions, libraries, or archives acting within the scope of employment). If you as an educator can demonstrate that you made those copies in good faith believing that yours was fair use, you may not have to pay a fine at all even if the courts decide it is NOT fair use.

One other aspect to keep in mind is that it is illegal to circumvent any technological controls protecting access to a work even if the work protected by these measures qualify for fair use.

So what happens when fair use does not apply? Get Permission or don't use it.

For more information about Fair Use see the Library of Congress Fact Sheet (FL 102) "Fair Use" and Circular 21 "Reproduction of Copyrighted Works by Educators and Librarians".

There is also the First Sale Doctrine from section 109a which permits the sale or disposal of a copy lawfully obtained.

"Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

This is the part of the copyright law that says if you legally obtain a copyrighted item you may sell it or give it as a gift or tear it up into little pieces, but it does not permit the duplication of that item.