Curtin Memorial Library
 
 

What is Fair Use?


One of the most important aspects of copyright law is that there are exceptions to the rights of copyright owners. The best known of these exceptions is the Fair Use Doctrine which was added to the Copyright Act of 1976. This doctrine recognizes that at certain times unauthorized infringements of copyright "promote the Progress of Science and the useful Arts." In other words, using copyrighted materials "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" would be “the fair use of a copyrighted work.” (U.S. Copyright Office, Reproduction of Copyrighted Works 4)

Deciding what constitutes "fair use" is not always straightforward, however. Rather than providing precise specifications, Congress created a "flexible" law that would be adaptable for many situations. In order to determine then whether the use of a work is "fair use," the Fair Use Doctrine states that the following four factors must be considered:

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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

For faculty it is generally most important to keep in mind the amount of copyrighted material being used and whether this use impacts market value. Photocopying a short excerpt from a book to enhance a classroom lesson, for example, would fall within the realm of fair use while copying most of a book (rather than having students buy that book) would not.

Because the Fair Use Doctrine is not specific, a Congressional Report in 1976 established some guidelines to help educators comply with fair use. According to this report, the following is always prohibited:

Classroom copying cannot be used to replace workbooks, texts, standardized tests, or other materials that were created for educational use (in other words, educators cannot usurp the profits of educational publishers through their copying).
There can be no copying of works intended to be "consumed" in the course of study, such as workbooks, exercises, test booklets, answer sheets, and like consumable materials.
Copying cannot be used to create, replace, or substitute anthologies, compilations, or collective works.
Students cannot be charged more than the actual cost of the photocopying.
Copying cannot be repeated with respect to the same item by the same educator from term to term.

For an in-depth account of the preceding description of the Fair Use Doctrine, please refer to Reproduction of Copyrighted Works by Educators and Librarians from the U.S. Copyright Office.

The Mount has developed a Fair Use Checklist to assist faculty in complying with fair use provisions. For practical "rules of thumb" on what constitutes fair use, please see the Practical Tips for Ensuring Fair Use section of this web site.

General questions about copyright and fair use can be directed to Barbara Petruzzelli, Director of the Library, 845-569-3601, or Derek Sanderson, Acting Access Services Librarian, 845-569-3240. If you are working with a more complicated scenario not addressed in these guidelines, please contact Cathleen Kenny, Vice President for Finance and Administration, 845-569-3210, who is liaison to our college attorneys.



"Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License." Stanford Law School, Center for Internet and Society, http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale