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Copyright Guide

This is a guide to copyright information and issues for Spalding University faculty and students prepared by Spalding University Library. Information in this library guide does not supply legal advice nor is it intended to replace the advice of legal co

Fair Use

Copyright law recognizes that not all uses of copyrighted works infringe the rights of the copyright owner. Section 107 of the Copyright Act states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other 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 of copyright.

"Fair uses" of works do not require permission.

Determining Fair Use

Four factors are considered in determining whether or not a particular use is fair or not. No single factor dictates whether a particular use is fair use.  All four factors must be considered in making a determination. Consider each of these factors, but all of them do not have to be favorable to make your use a fair one. When the factors in the aggregate weigh toward fairness, your use is better justified. When the factors tip the scales in the other direction, your need to obtain permission from the copyright holder increases (Association of Research Libraries, 2007).

1. What is the purpose of the use? 

Fair use favors any use that is nonprofit, educational or personal, especially if it is for teaching, research, scholarship, criticism, commentary, or news reporting.  Fair use does not favor uses that are commercial, for profit, or for entertainment purposes. It is important to remember that not all educational uses are fair use. Transformative uses that transform or modify the original purpose of the work and contribute new intellectual value to the original work are often considered fair use.

2. What is the nature of the work?

Since authors should have final say over when and how their works are published, fair use tends to favor published works over unpublished works. In addition, factual works are more likely to be considered available for fair use than creative works such as art, music, novels, films, and plays.

3. How much of the work will you use?

Using a small amount generally favors fair use, whereas using a large amount weighs more against fair use. However, even a small amount of a work can be too much if it can be considered the heart of the work.

4. What effect will the use have on the market or potential market value of the work?

Does the use deprive the copyright owner of income or undermine a new or potential market? If so, the use does not favor fair use.

Association of Research Libraries. (2007). Know your copy rights. Retrieved from, http://www.knowyourcopyrights.org/storage/documents/kycrbrochure.pdf

Fair Use Analysis

The following tools are based on the four factors of fair use - purpose, nature, amount and effect – and help determine if fair use applies.  They provide an important means for recording your fair use analysis, which is critical to establishing "reasonable and good-faith" attempts to apply fair use.

In addition, the Association of Research Libraries, in partnership with the Center for Social Media and the Washington College of Law at American University, developed the Code of Best Practices in Fair Use for Academic and Research Libraries in 2012 to aid the research and academic library community in determining fair use. Additional codes of best practices in fair use can be found on the website of the Center for Media and Social Impact.

  • Fair Use Checklist  Developed by Kenneth D. Crews (Columbia University) and Dwayne K. Buttler (University of Louisville) and available from the Copyright Advisory Office at Columbia University.
  • Fair Use Evaluator Developed by Michael Brewer &  ALA Office for Information Technology Policy, this tool is designed to help determine the "fairness" of a use under the U.S. Copyright Code.
  • Document the Fair-Use Reasoning Process Worksheet Developed by Renee Hobbs from the Media Education Lab at the University of Rhode Island.
  • A Window on Fair Use Developed by Ellen Duranceau, MIT libraries, this informative video explains the four factors of fair use.

 

With permission: Terry Owen and Andrew Horbal, University of Maryland Libraries