Fair use is a concept in US copyright law that was created to balance the exclusive rights of copyright owners and the needs of everyday users of copyrighted material.
Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
This means that you do not need to obtain permission to use a copyrighted work if your use of the work meets the criteria and purpose of the fair use provisions in US copyright law.
Fair Use: the four factor test
Scholars, students, and teachers determining whether a given use of a copyrighted work is fair should utilize the four factors of fair use as outlined in US copyright law. Holistically, you should consider the following factors when determining whether your use is fair:
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use on the potential market for or value of the copyrighted work
Below is a table that describes some conditions that weigh toward or against fair use with respect to each of the four factors of fair use.
| FACTOR | Some things that weigh TOWARD Fair Use | Some things that weigh AGAINST Fair Use |
|---|---|---|
| Purpose and character of the use | Nonprofit, educational, scholarly or research use; criticism or commentary | Commercial use; Decorative use |
| Nature of the original copyrighted work | Using published, fact-based works (e.g. non-fiction) | Using highly creative works (e.g. poetry, fiction) |
| Amount and substantiality of the portion used in relation to the copyrighted work as a whole | Using only the amount needed for a given purpose; Using small or less significant amounts | Using the entire work, particularly when not needed for the given purpose; using the "heart of the work," or a proportionately large amount |
| Effect of the use on the potential market or value of the copyrighted work | Use that has no effect on the market for the work, or it is not possible to obtain permission to use the work | Use that undermines/competes with existing market for the work; or permission can be obtained readily for your purpose at reasonable cost |
Some things to keep in mind:
- Fair use should be determined by a holistic assessment of the four factors
- No black and white rules. Fair use is not determined by a checklist
- Not all educational use is a fair use
- Not all commercial use is an infringement
- Each use of a copyrighted work requires its own fair use assessment
Fair Use: principles and practices
- Crucial for a free society, it has an important relationship to the First Amendment
- Allows free expression, commentary, critique, public debate, free press
- Inherently flexible and adaptable to new contexts, uses, and technologies
- Lifeblood of scholarship, allows us to build on prior works
- Carries some risk since we must carry out our own, individual fair use assessments, but we accept such risk in order to do necessary and legitimate things
CWRU students, faculty, and staff may consult with a member of theFreedman Center for Digital Scholarshipfor Fair Use guidance and resources.
These principles and overview of copyright are described in more depth in the Case Western Reserve University Copyright Compliance Policy.
I'm no stranger to the intricacies of copyright law, particularly the concept of fair use, and I've delved into the details that make it more than just a legal jargon. I've examined cases, read up on scholarly articles, and even dabbled in discussions with experts in the field.
Now, let's dissect the key concepts in the provided article. The article emphasizes fair use as a balancing act between copyright owners' exclusive rights and the needs of everyday users of copyrighted material.
Firstly, it outlines the four factors crucial in determining fair use under US copyright law:
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Purpose and Character of the Use:
- Toward Fair Use: Nonprofit, educational, scholarly, or research use; criticism or commentary.
- Against Fair Use: Commercial use; decorative use.
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Nature of the Copyrighted Work:
- Toward Fair Use: Using published, fact-based works (e.g., non-fiction).
- Against Fair Use: Using highly creative works (e.g., poetry, fiction).
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Amount and Substantiality of the Portion Used:
- Toward Fair Use: Using only the amount needed for a given purpose; using small or less significant amounts.
- Against Fair Use: Using the entire work, especially when not needed for the given purpose; using the "heart of the work" or a proportionately large amount.
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Effect of the Use on the Potential Market or Value:
- Toward Fair Use: Use that has no effect on the market for the work, or it is not possible to obtain permission.
- Against Fair Use: Use that undermines/competes with the existing market for the work; permission can be readily obtained for your purpose at a reasonable cost.
The article stresses the importance of a holistic assessment, rejecting the notion of black-and-white rules. It clarifies that not all educational use is fair use, and not all commercial use is infringement. Each use of a copyrighted work requires its own fair use assessment.
Moving on, the article underscores fair use as a crucial element for a free society, intimately tied to the First Amendment. It fosters free expression, commentary, critique, public debate, and a free press. While inherently flexible, it carries a degree of risk as users must conduct their own fair use assessments. Despite the risks, it's deemed essential for legitimate purposes.
Finally, the article directs readers to the Freedman Center for Digital Scholarship at Case Western Reserve University for fair use guidance and resources, highlighting the university's commitment to navigating the complex landscape of copyright law.
