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Copyright Tutorial: Fair Use

What is fair use?

The limitations of these rights that allow educators to use copyrighted materials is Fair Use. These rights may also be sold, licensed or given away by the owner. It is possible that several persons may own different rights to the same work. Copyright is violated if even one of the five rights is abridged.

Regarding works for hire: the employer has the right to control the manner and means by which the work is produced. The copyright is owned by the employer if the work was produced in service to the employer.


Section 107, Title 17, U.S. Code


"Not withstanding the provisions of Section 106, the fair use of a copyrighted work, including such use in reproduction in copies or phonorecords or by any 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 or copyright."

Four factors of fair use

Fair Use is intended to balance the rights of copyright holders with society’s legitimate need to make copies in certain limited circumstances. Fair use lets you make a copy for you or your class for educational use with certain limitations.

Congress has set forth four provisions to be considered in deciding whether copying falls under Fair use:

1]The purpose and character of the use (is it a non-profit educational purpose?)

2]The nature of the copyrighted work (is it more creative or factual?)

3] The amount and substantiality used (how much of the work are you copying and is it the "meat" of the work?)

4] The effect of the use on the potential market for the work

Let’s examine each of these factors, one by one, for an explanation...

1] Purpose of the use

The first factor asks primarily whether the use is of a commercial nature or whether it is intended for educational use. Almost always favors the school

Favors fair use
  • Nonprofit
  • Educational
  • Personal
  • Teaching
  • Criticism and comment
  • Scholarship and research
  • News reporting
Favors permission
  • Commercial
  • For profit
  • Entertainment

 

 

 

2] Nature of the copyrighted work

Factual material has little protection since facts cannot be copyrighted. A list of common facts such as the 10 longest rivers cannot be copyrighted (however the format can). Highly creative material (novels, poems, artwork, web page design, etc.) would be much more likely to be protected.

Favors fair use:
  • Fact
  • Published
Favors permission
  • Creative
  • Unpublished

 

3] Amount and substantiality used

If you plan to copy the entire poem, book, article, webpage, etc., then you better be sure you meet the other 3 factors. The more you are using, the less leeway you have. The substantiality of the excerpt is important also. You may use only a small part of a work, but it may be the "creative essence" of the work. The latest court ruling states a 10%/1 chapter limit on books.

Favors fair use
  • Small amount
Favors permission
  • Large amount
  • Heart of the work

 

4] Effect on potential market

This is the factor that the courts place the most weight on. Did the use deprive the copyright owner of a sale. If everyone made similar use of the material, what effect would it have? The GSU decision considers whether there is a licensing market for the item.

Favors fair use
  • No effect
  • Licensing/permissions unavailable
Favors permission
  • Major effect
  • Work is made available to world

If the balance weighs in favor of fair use, then the work can be used without permission. All educational use is not automatically fair use. Fair use applied to all mediums of transmission, so may be applied regardless of the technology. 

Subject Guide

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Lori Bryan
Contact:
361-570-4161

Congressional guidelines

The 1976 Copyright Act did not define Fair Use; it merely set out four factors to consider in which fair use might be applicable.

The House of Representatives established guidelines for making single copies for educational use. These are guidelines only; they are not law and should only be used as a general reference. They are there to establish a "safe harbor" within which educators may use materials without permission from copyright holders.

The House guidelines state that teachers may make single copies of the following:
  • A chapter from a book;
  • An article from a periodical or newspaper;
  • a short story, essay or poem, whether or not from a collective work;
  • a chart, graph, diagram, drawing, cartoon or picture from book, periodical or newspaper