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What is Fair Use?

Fair use is actually a defense claim of copyright infringement as opposed to an affirmative right of use. Infringement meaning using a copyrighted work without permission. It is the broadest and most general of several exemptions which could be applied to allow specific uses of copyrighted materials without needing to ask permission.

There are four types of uses or factors of Fair Use. Each need to be considered before using a copyrighted work. No one factor is a concrete determination of fair use and ultimately the courts decide whether it is a strong or weak defense.

Four Factors of Fair Use

1. The purpose and character of the use, including whether it is of a commercial nature.

How is the copyrighted work going to be used and are you going to use it in a different way than it was originally used? Purposes that favor fair use include education, scholarship, research, news reporting, criticism and commentary. Works used for non-profit purposes favor fair use over commercial based usage.

2. The nature of the copyrighted work.

Is the work you are copying more factual or creative? Factual works such as an encyclopedia entry favor fair use over a fictional or creative work such as a song or poem. Another consideration is now long will the work be used. Copyrighted work used for a single semester, in a secured environment favor fair use as opposed to those used every semester.

3. The amount and substantiality of the portion used.

Both quantity and quality of the work is weighed under this use. There is no definite set or rule to the amount of the work one can use, but as general rule, using less favors fair use rather than more. Then of that amount used does it make up the "heart" or is significant to the context of the total work, if so then it would not be fair use.

4. The effect of use on the potential market for the copyrighted work.

At issue is whether or not the work being used would take money out of the hands of the copyright owner. Would your use of the work substitute for sales either to your students or to anyone else? If so, it would not be fair use.

Keep in mind, there is no yes or no answer to the above uses, it works more like a slider where you can make a strong, neutral, or weak fair use defense if you ever need to go to court. What you do want to do though is every time you make a copy of a work apply these uses for each instance and make the strongest defense possible.

Full description of the four factors for evaluating the question of Fair Use can be found on the copyright.gov website.

Fair Use Checklist

The Fair Use Checklist is a tool which can be used to help decide whether the choice to use a piece or portion of a work falls more under fair use or is protected under copyright.

The guide is based on The Four Factors of Fair Use listed above and is meant to be used as a guideline for making a “determination” as to whether a use is indeed fair. It could be used to help establish your good faith in your decision-making process, but does not constitute or carry the force of the law.

The Fair use checklist is used with permission for revision from the PCC Cascade Library and used under a CC BY/NC license from the Copyright Advisory Office of Columbia University.

In addition to the checklist, use the Librarycopyright.net Fair Use Evaluator to help you better understand how to determine the "fairness" of a use.

Disclaimer

CopyRight@BC website is intended to provide general information and does not constitute legal advice. Please contact a licensed copyright lawer if in need of counseling.

Contacts

Cassie Bruner
Copyright Librarian

Linda McConnell
Digital Copyright Manager

Email questions to: copyright@brazosport.edu

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