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Copyright and Fair Use: Fair Use

What is Fair Use?

Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107)

Those Acceptable Uses are:

  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship/Research
Copyright Act, 17 U.S.C. §107 (2000)

Tools to help you Determine Fair Use

  • Thinking Through Fair Use: This tool from the University of Minnesota is based upon the Fair Use Checklist below, but includes room for making notes about your analysis. Once the form is complete, you can email a copy to yourself for your records.  
  • Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.
  • This two-page checklist was developed by Kenneth Crews, a well-known and respected copyright expert. Using the checklist and retaining it for work that an individual wishes to use either online or in the classroom, demonstrates that the individual is aware of copyright and has attempted to make a fair use analysis for his use. This helps to protect the individual from perceived copyright violations.

    Keep in mind that a new analysis must be done for repeated uses of the same materials or new uses of it. Repeated use is generally not considered fair.

 

Fair Use in Academia

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. The complexity of fair use and its importance in academia make it imperative that every member of Embry-Riddle Aeronautical University, Prescott Campus understands how to make judgments concerning fair use.

Review these Common Scenarios to help you determine whether or not fair use is appropriate.

What Determines Fair Use?

The four factors are meant to protect an author from overuse without compensation. They are to be considered as a whole with no one factor weighing more heavily than another. If someone wants to make use of a copyrighted work, he must consider the following factors to determine if his use is fair.

  • Purpose and character of the use
    Is it for commercial use or for nonprofit educational use? Educational use is more likely to be fair.*
  • Nature of the work
    Is the original fiction or nonfiction? Nonfiction is more likely to be fair as it is not a creative work.
  • Amount of the work being used
    What percentage is being used and is it the “heart” of the work? It is this factor that drove the development of guidelines. Using an entire work is usually regarded as unfair; however, using just 3% of the work which includes the “heart,” could also be unfair. This factor has grown over time to consider the transformative nature of a new work. Courts have examined cases where entire works were used, but because they were transformed into something new demonstrating creativity and not simple copying, the use of the whole work was allowed. See Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
  • Effect upon the market
    Is it replacing the original, supplementing it, or creating a new market for it?
Copyright Act, 17 U.S.C. §107 (2000)
 

* Not all uses in an academic context are automatically considered fair use!