This week is Fair Use/Fair Dealing Week (February 26th – March 2nd). The organizers of the event state that “Fair Use Week is an annual celebration of the important doctrines of fair use and fair dealing.The week is designed to highlight and promote opportunities presented by fair use and fair dealing, to celebrate successful stories, and to explain these doctrines.”
Fair Use/Fair Dealing acknowledges the important doctrines of fair use in the United States that govern publication and scholarship. While works of creation are copyrighted by their creators/owners, this right is not absolute. Fair use and fair dealing outline limitations and exceptions to copyright. Copyrighted material can be used without permission from the copyright holder assuming certain conditions are met. The flexibility in fair use doctrine allows for individuals/groups to exercise their freedom of speech and expression in creating and transforming works.
Students, faculty, staff, and librarians should be aware of the concept of fair use and its many applications to creativity. The Office of General Counsel at CUA has a copyright page with FAQs, resources, forms, and checklists.
The Fair Use Fundamentals
Recognizing that copyright is not absolute, fair use constitutes balancing your proposed needs of someone else’s work with the copyright owner’s rights.
Whether fair use is applicable in your case will depend on a number of questions, some of which are: what exactly are you using? Are you transforming the work? How widely are you sharing the materials? Will the work be just at the university or somewhere else?
Section 107 of the U.S. Copyright Act (Limitations on exclusive rights: Fair use) provides four factors in determining fair use as you balance your needs with that of the copyright holder.
Factor 1: Purpose and Character of the Use
If you are part of a non-profit institution, you have greater leeway than a for-profit business. Taking into account the nature of the work–criticism, commentary, news reporting, teaching, scholarship, or research and its transformative value will impact fair use applicability. For example, quotes put into a scholarly paper have a transformative quality and thus, constitute fair use.
Factor 2: Nature of Copyrighted Work
What is the nature or character of the work being used? Given the type of work, copyright holders have the right to ‘first publication’ and the courts would not side with fair use if, for example, a manuscript was unpublished. Courts distinguish between fiction and non-fiction works and they will generally side with fair use for non-fiction. That is, courts are more inclined to protect works of art, film, fiction, etc. from fair use provisions.
Factor 3: Amount and Substantiality of Portion Used
This important factor is usually what students and faculty have in mind when first considering fair use. For example, how much of a book can I copy and put in Blackboard, is a common question. Generally speaking, the more content of a work you use, the less fair use protection you have. The nautre and size of the work will also determine the plausibility of fair use. Using an entire photograph for a project would be an infringement but using a thumbnail of the image would be fair use.
Factor 4: Effect on the Market for Original Work
The point of having copyright is to ensure that the creator is able to make a profit off of the work. How one determines the effect on market value is to ask whether one could realistically purchase or license the copyrighted work. If something is readily available, then this will go against fair use. If your work is non-commercial, then the effect on the market would be difficult to prove. A work that is commercial in nature will have a more diffcult case in proving the fair use exemption.
The Process of Fair Use
If someone is sued over infringement of fair use, the judge(s) will go through these factors to determine if there is sufficient cause. The legal case of President Gerald Ford and his memoir is a classic example of copyright infringement. The Nation magazine copied a pivotal part of Ford’s memoir and published it, citing fair use. The case went to the Supreme Court which eventually ruled in President Ford’s favor. You can read the history of the case and the judges’ process of thinking through the four factors at the Trademark & Copyright Law blog.
Fair Use/Fair Dealing Week as an infographic that explains what fair use is, why it is important, who uses fair use, and provides some examples of fair use.
The Library of Congress has a great post on knowing when to use a copyrighted work.
The U.S. Copyright Office has an index that follows judicial decisions on fair use.
Obtaining permission to use a copyrighted work can be a fraught affair. The Library of Congress has provided a handout to address some concerns.
The Scholarly Communications & Copyright Office at the Penn State Libraries has a checklist balancing the pros and cons of fair use.
The Copyright Advisory Services at the Columbia University Libraries has a roadmap for determining fair use of a work.