What is fair use?

A provision for fair use is found in the Copyright Act at Section 107. Under the fair use provision, a reproduction of someone else's copyright-protected work is likely to be considered fair if it is used for one of the following purposes: criticism, comment, news reporting, teaching, scholarship and research. If the reproduction is for one of these purposes, a determination as to whether the reproduction is fair use must be made based upon four factors:

  1. The purpose and character of use;
  2. The nature of the copyright-protected work;
  3. The amount and substantiality of the portion used; and
  4. The effect of the use being evaluated upon the potential market for or value of the copyright-protected work.

No one factor alone determines a person’s right to use a copyrighted work without permission. They are weighted measures and one may be more applicable than another, depending on the circumstances. Fair use is an ambiguous concept and the law does not state exactly what uses of a copyrighted work will be considered fair uses under the law and may therefore be used without obtaining permission. As such, individuals who are not lawyers may often need to be interpreters of the law in everyday circumstances, and answers as to how much reproduction may be considered fair use often remain unclear. The bottom line is that fair use requires a very circumstance specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use.

The copyright act provides a very important 'defense' for employees of a nonprofit educational institution who make a reasonable, good faith determination that their proposed use of copyrighted materials is a fair use. If such employees, acting within the scope of their employment, made a reasonable, good faith decision that their proposed use of copyrighted materials was a fair use under the copyright act, a court, later finding that they had infringed, must remit statutory damages. The key is that the infringer must have believed, and have had reasonable grounds for believing, the use was a fair one. Thus, taking the time to learn about copyright law and fair use, applying that knowledge and keeping some documentation of that analysis is not only the right thing to do, it may also help out in the long run. Source: US Code, Section §504[c][2]

Reviewing the Factors and Fair Use Checklist 

Factor One: If the use is for nonprofit, educational, or personal use then it leans more in the direction of fair use. 

Factor Two: If the nature of the work is a published fact then it leans more in the direction of fair use compared to the work being more imaginative or unpublished. 

Factor Three: If the amount used is small then it leans more in the direction of fair use. 

Factor Four: If after evaluation of the first three factors, the proposed use is tipping towards fair use then then effective on the potential market or value of the work supports factor four leaning more in the direction of fair use. It's not likely fair use if your use competes with (takes away sales from) the original, avoids payment fo permission (royalties) in an established permissions market

Other Tools to Test Fair Use

 

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