Fair Use

Image created by Professor Eric Faden of Bucknell UniversityFBI warning.

Fair use is an exception to normal copyright rules.

It allows educators, researchers, and others to make limited use of copyrighted works without the permission of the copyright holder.

Pop quiz: Would the following be covered under “fair use?”

A university copy store works with professors to create photocopied “course packs,” which are sold to students for particular classes. The copied content is mostly factual and academic in nature, and most copying takes 5% – 25% of the original works. When publishers sue the copy store for copyright infringement, the copy store counters that its service is intended for educational use and should be covered under “fair use.”

The question “what is covered by fair use?” is frequently asked.
The bad news: there is no fool-proof formula for knowing what will be covered by fair use.
The good news: educators get more leeway than most.
More good news: there are many useful guides on the web from organizations such as

To understand Fair Use it helps to read the statute itself.

The following is taken from Title 17 U.S.Code, sec. 107:

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Consider the four factors listed in the statute when deciding if you are covered by fair use. You needn’t satisfy all four, but your safety increases to the extent that they are satisfied. If you’d like to read the statute in its entirety, you can access it here.

The Purpose and Character of the Use

This first factor is perhaps most important for distinguishing fair use. “Purpose” relates to whether or not copying is done for profit or for educational value. The courts favor non-profit use, and the statute explicitly mentions copying for classroom use. “Character” looks at whether copied content has been transformed so as to have new meaning, or whether it has merely been copied.

Monroe

The Nature of the Copyrighted Work

We have more leeway when we are copying factual works than when we copy fictional works. We are also safer when we copy published, rather than unpublished, works.

The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

Generally speaking, the less you copy the more likely your copying will be covered by fair use. However, copying even a tiny bit can infringe if the bit you copy is seen as the “heart” of the work (think of Vanilla Ice copying the bass line to Queen’s song “Under Pressure”). Attempts to quantify how much can be taken under fair use can be somewhat misleading, since the amount allowable is very contingent on the other factors listed in the statute. Nonetheless, a US District Court judge in Georgia recently said that about 10% of a work, or approximately one chapter, ought to be covered under fair use.

the effect of the use upon the potential market for or value of the copyrighted work

Finally, it is a strike against you if the copyright holder can show that your use of copyrighted material deprives him or her of income.

The Copy Store Scenario

The scenario at the beginning of this blog post was taken from the case Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). In that case, Kinko’s was judged to be infringing on copyright when it created “course packs” for university classes. The following analysis of the judges reasoning in that case comes from Columbia University’s Copyright Advisory Office:

  • Purpose: When conducted by Kinko’s, the copying was for commercial purposes, and not for educational purposes. Because the purpose was also not transformative, this factor weighed against fair use.
  • Nature: Most of the works were factual—dealing with history, sociology, and other fields of study—a factor which weighed in favor of fair use.
  • Amount: The court analyzed the percentage of each work, finding that copying between five and 25 percent of the original full book was excessive, particularly because the parts copied were critical to the works and each of the chapters could stand alone.
  • Effect: The court found a direct effect on the market for the books, because the coursepacks competed directly with the potential sales of the original books as assigned reading for the students.

Conclusion: Three of the four factors leaned against fair use. The court specifically refused to rule that all course packs are infringements, requiring instead that each item in the “anthology” be subject individually to fair use scrutiny. Notice that the copying was made by a commercial user for a profit; the court left open the question of fair use by the nonprofit institution itself.

The 2012 case Cambridge University Press et al v. Patton et al was similar to the Kinko’s case except that the defendant was a nonprofit university, and instead of course packs the dispute centered on eReserves content. In that case, the judge ruled almost entirely in favor of the university, thanks in large part to its nonprofit status.

The moral of the story is that you should not be afraid to use copyrighted material in your courses, but you should always consider your copying in light of the four factors listed in the statute. There is no fail-proof formula for fair use, but common sense and courtesy shown to copyright holders goes a long way.

If you’re ever unsure about whether something is covered under fair use, don’t hesitate to visit Justin (that’s me) at Extended University or one of our university librarians.

Thanks for reading!

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