Copyright and Fair Use

What is copyright?

Copyright secures for the creator of a creative work the exclusive right to control making or distributing copies of a work, performing or displaying it or adapting it. Copyright does not protect ideas, thoughts or facts.

For more information on copyright, see:

• U.S. Copyright Office
• Copyright Basics (Circular 1, U.S. Copyright Office)
• Title 17, U.S. Code
• Campus Guide to Copyright Compliance

What is fair use?

Fair use ensures that there are some types of uses that do not require permission or payment based on four (or five) factors:

Purpose and character of the use

• Is the new work merely a copy of the original?
  Not likely to be fair use!
• Is the use of the copyrighted material for nonprofit or educational purposes?
  Purposes that favor fair use: education, scholarship, research and news reporting; also non-profit rather than for-profit.

Nature of the copyrighted work

• Is the copyrighted work published or unpublished?
  Using unpublished works are less likely to be fair use. 
• Is the copyrighted work out of print?
  If so, it is more likely to be fair use.
• Is the work factual or artistic?
  Taking from a factual work is more likely to be fair use.

Amount and substantiality of the portion used

• Does the amount you use exceed a reasonable expectation?
  A smaller proportion is more likely to be fair use.
• Is the specific portion used likely to adversely affect the creator’s economic gain?
  Use of peripheral elements is more likely to be fair use.

Effect of use on the potential market for the copyrighted work

• How much does the new work differ from the original?
  The more it differs, the more likely to be fair use.
• Does the new work appeal to the same market as the original?
  If so, it is less likely to be fair use.

Transformative use

• Does the derivative work use the source work in completely new or unexpected ways?
  Transformative uses might include parody and as part of the production of new technologies and are more likely to be fair use.

For more information on fair use, see:

• Fair use (fact sheet from U.S. Copyright Office)
• Can I Use Someone Else’s Work, Can Someone Else Use Mine? (FAQs from U.S. Copyright Office)
• Copyright Registration for Derivative Works (Circular 14, U.S. Copyright Office)

Fair use points for faculty

Brevity
Chapter not an entire book, journal or newspaper article; chart, graph, diagram, drawing, picture more likely to be fair use.

Spontaneity
Copying should occur closely in time to the need to use copies, should not be repeatedly such as multiple trimesters and permission should be obtained as feasible, also should not copy and use same material for several different courses. Making multiple copies of various works should not substitute for purchase of books or periodicals. Seek permission when you intend to use material for commercial purposes, plan to use the material repeatedly or when you want to use a work in its entirety. Always credit the source.

Classroom Use Exemption
Provides instructor and students broad rights to perform or display works but applies only to nonprofit, in-person, classroom teaching…not online.

T.E.A.C.H. Act (Technology, Education, and Copyright Harmonization Act)
Provides some rights for online and distance learning but is much more restricted and requires meeting a lengthy list of conditions.

• Reproduction of Copyrighted Works by Educators and Librarians (Circular 21, U.S. Copyright Office)
• Exemption of Certain Performances and Displays  (17 U.S.C. $ 110(1)
• Technology, Education and Copyright Harmonization Act of 2001
• The TEACH Act and Some Frequently Asked Questions (American Library Association)
• Copyright Tools (American Library Association)
• Exemptions and Limitations: Classroom Use, Fair Use, and More (University of Minnesota)
• Copyright Law and Public Domain (Nolo Press)
• Linking, Framing, and Inlining (Nolo Press)