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Copyright and Fair Use: Fair Use

What if fair use?

Fair use is an exception to copyright law that permits the reproduction of a portion of a copyrighted work for the sake of research, teaching, and commentary without need of asking the copyright owner's permissionThis is a vitally important exception for education as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship, teaching, and critiques.

Section 107 of the U.S. Copyright Act establishes four factors to be weighed in determining fair use: 

  • Purpose & Character of the Use
    • Tilt of the scales: Courts favor uses that are educational, scholarly, nonprofit and have broad public benefit; also, "transformative" uses, those that change the original through commentary, critique, elaboration
    • Limitation: Access to the copyrighted material must be limited to a target audience; for example, made available in an online course only to enrolled students and only through the password protected Moodle site
  • Nature of the Work
    • Tilt of the scales: Courts favor the use of published non-fiction works; more creative works --fiction, performances-- can still be used under a fair use defense, depending on how the other three factors weigh in
    • Limitation: The use must be very concretely linked to the stated educational purpose
  • Amount of the Work Used
    • Tilt of the scales: Courts favor the use of a reduced amount of material that doesn't focus on the heart of the work; at the same time, no set percentage of the work to be used is dictated by law; this is as much a qualitative as a quantitative consideration
    • Limitation: As long as the amount used can be shown to be appropriate to the purpose, fair use holds, whether it is, for example, 75% or 10%
  • Effect on the Market of the Use
    • Tilt of the scales: Courts weigh seriously the possible impact of any use on the original's profitability for its creator, favoring uses where the original has already been purchased by the user and licensing at a reasonable price is difficult to come by
    • Limitation: Given its impact on the original's market, repeated posting of the same copyrighted material in an online course makes a fair use defense impossible

Common Fair Use Misconceptions

Using copyrighted material for teaching is always fair use, right?

Not necessarily. The "purpose of the use" factor heavily favors educational, nonprofit, and public good use. But, a fair use analysis must weigh all four factors to arrive at a sound determination.

If you're not making money from it, it must be fair use, right?

Wrong. Not making money off using copyrighted material does not guarantee a fair use determination. You can use copyrighted material without any financial gain and still affect the work's market negatively.

If you use more than 50% of a work, you cannot claim fair use, right?

Not necessarily. While the "amount" factor specifies using non-essential portions of the work in modest amounts, it also indicates that the use must be appropriate to the purpose. In some cases that can even mean using all of the copyrighted work.

If you provide a citation and give credit where credit is due, then your use of copyrighted material is fair use, right?

This is not the case. While attribution is always appropriate in scholarly and educational activity, copyright law does not require citation. Again, weighing all four factors is what will determine whether it's fair use.

If you can use copyrighted materials in the classroom, then you can also use them online, right?

Wrong. Materials for online teaching require their own fair use analysis. This analysis would have to take into account the specifics on the digital environment.

What other legislation impacts the use of copyrighted materials for teaching?

The Technology, Education, and Copyright Harmonization Act or TEACH Act (2002) expanded educators' right to use copyrighted material in digital environments under limited conditions without securing permissions. The limited conditions map overall to the fair use framework, expanding it specifically to online environments. Some differences include: the TEACH Act applies specifically to nonprofit, accredited educational educational institutions and students must be informed that the material in question is protected by copyright law.

For a more in-depth review of the TEACH Act, see research guides by the University of Minnesota Libraries and Cornell University Library.

How do I know if it's fair use?

  • This video will walk you through a fair use analysis in the case of a research and instructional project