How do I know whether my use of copyrighted materials is protected under the “Fair Use” clause of the Copyright Act?
Fair use is a legal doctrine that allows the public to make limited uses of copyrighted works without permission. Fair use may not be what you expect. Therefore, do not assume that a nonprofit, educational use or giving credit for the source of the work, or that limiting access to materials to students in the class creates an inherent fair use. Fair use depends on a balancing of four factors, which may be addressed by a variety of means. The four factors are:
- Purpose of the Use
- Materials should be used in class only for the purpose of serving the needs of specified educational programs.
- Students should not be charged a fee specifically or directly for the materials.
- Nature of the Work
- Only those portions of the work relevant to the educational objectives of the course should be used in the classroom.
- The law of fair use applies more narrowly to highly creative works; accordingly, avoid substantial excerpts from novels, short stories, poetry, modern art images, and other such materials.
- Instructors should carefully review uses of “consumable” materials such, as test forms and workbook pages that are meant to be used and repurchased.
- Amount of the Work
- Materials used in the classroom will generally be limited to brief works or brief excerpts from longer works. Examples: a single chapter from a book, individual articles from a journal, and individual news articles.
- The amount of the work used should be related directly to the educational objectives of the course.
- Effect of the Use on the Market for the Original
- The instructor should consider whether the photocopying harms the market or sale of the copyrighted material.
- Materials used in the class should include a citation to the original source of publication and a form of a copyright notice.
- Instructor should consider whether materials are reasonably available and affordable for students to purchase—whether as a book, coursepack, or other format.
Fair Use, because it is not clearly defined by the Copyright Act, remains a somewhat subjective concept and thus open to wide variations of interpretation. The only way to know for certain if a particular situation is fair use or not is for the case to go before a court.
Tools have been developed to help faculty evaluate whether or not how they want to use a copyrighted item meets the four factors of “Fair Use” or not. One such tool that is web-based has been created by the American Library Association is available for you to use is the Fair Use Evaluator.
Please also refer to the “Common Scenarios of Fair Use When Copying Items for Classroom Handouts” and to the “Common Scenarios of Fair Use When Posting Items for a Course in the Course Management Software,” e.g. Sakai.
Why not adopt a set of “guidelines” that explain fair use? Fair use is not determined by “guidelines” that purport to quantify the boundaries of fair use. In an attempt to clarify the meaning of fair use for common situations, various private parties have negotiated “guidelines,” but those externally developed guidelines are often inappropriate for the realistic application of fair use to higher education. Such guidelines are too often an unduly narrow or rigid definition of fair use, and they usually impose additional restrictions and conditions that are not part of the law. No such guidelines have been read into the law by Congress or the courts, and any such guidelines are not binding. Fair use must be determined according to the circumstances of each situation.