Copyright

Fair Use Exception

Fair use is the doctorine that allows for reproduction of any portion of copyrighted materials for limited and transformative purposes, such as criticism, comment, parody, news reporting, scholarship, research, and teaching.

 

The Law: Fair-Use Statute Section 107 of the Copyright Act of 1976
Limitations on exclusive rights:

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 in 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-

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

The Four Factors of Fair Use

Purpose and Character of Use
A person using copyrighted materials must be able to demonstrate that the use is “transformative” and not merely derivative of the original work.

• The original work must be absorbed into the new work in a way that converts the form, appearance, structure, condition, and/or nature of the original into something new that advances knowledge or progress in the arts.
• Nonprofit educational uses are favored over commercial uses.
• For teaching, multiple copies of portions of works are allowed for classroom use, even if not “transformative.” However, repetitive use ("cumulative effect") of copyrighted materials requires permission from the holder of the copyright.

 

Nature of the Copyrighted Work
Certain characteristics and aspects of the original work are taken into consideration.

• Courts more readily favor fair use of non-fiction materials as opposed to fictional materials.
• “Consumable works,” such as workbooks, have less fair use options and significantly more copyright protection to authors than text books.

 

Amount
There are no exact amounts or measurements defined in copyright laws pertaining to the fair use of copyrighted materials. The quantity must be relative to the length of the original and the amount needed to convey the transformative idea or information.

 

Effect
Effect is very closely linked to the “purpose.”

• The new work may not be a direct substitute for the original work due to its inclusion of another’s original material.
• New work may not cause harm to licensing market of the original work.

 

Online resources

Copyright Law of the United States
http://www.access.gpo.gov/uscode/title17/title17.html
http://www.copyright.gov/

Fair Use in the Copyright Law of the United States
http://www.copyright.gov/fls/fl102.html

Fair Use Cases
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html
http://www.copyright.iupui.edu/FUsummaries.htm

Teach Act
http://www.copyright.gov/legislation/pl107-273.html
http://www.unc.edu/%7Eunclng/TEACH.htm

Additional Information
http://www.copyright.iupui.edu/
http://www.copyright.iupui.edu/checklist.htm
http://fairuse.stanford.edu/
http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm