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Fair Use

Fair Use & Other Exceptions

Overview

Copyright law includes a variety of limitations and exceptions that govern the ways that copyrighted material may be used. The exception most people have heard about is fair use. Below are brief descriptions and links to some of the limitations and exceptions set out in copyright law.

Fair Use

Section 107 of copyright law describes fair use - a broad exception to copyright law that allows people to use a work without permission in certain circumstances. Unfortunately, the law is vague as to what these circumstances are. A judge is the only person qualified to say your use of a work is fair. Thus, you can never really know for sure if your use is fair until you are taken to court for copyright infringement for it and a judge rules that it is or is not. While this sounds disheartening, the law does provide factors that you can use to help you decide if your intended use might be fair or not. This in turn can inform your decision to either go ahead with the use or not.

Four Factors:

Section 107 of copyright law lists four factors you should take into account when deciding if a use is fair:

It is important to keep in mind that these factors are simply guidelines and that they may be more or less important in different situations. For example, just because your use is for educational and non-profit purposes, this does not automatically make it fair use. Similarly, it is also possible for a use to be fair without necessarily fulfilling each of these criteria. Even though it is commercial, other factors like whether a work is being reproduced or transformed can make a big impact on whether or not fair use applies. There are many ideas to take into consideration within each of these general rules, so it pays to carefully consider each one.

It is a good practice to assess every instance of fair use as it occurs, and make the best judgment each time to ensure that you are neither over-stepping the doctrine and misusing others’ copyrights, nor missing out on opportunities that the law provides.

There are a number of tools available that assist in making these types of decisions easier.

Fair Use Analysis

The following charts are a visual representation of the balancing act that fair use entails.

Adapted from Columbia University’s Fair Use Checklist, as well as the University of Minnesota’s Fair Use Analysis Tool and Fair Use Decision Map.

1. What is the character of the purpose of the use?
Educational use is much more likely to fall within the range of fair use. In general, content creators are less likely to allow reuse of their work if someone intends to make a profit off of it.
2. What is the nature of the material being used?
This is a difficult one to grasp, but in general, published and factual works are more likely to be considered fair use cases than unpublished and fictional works.
3. How much of the work will be used?
Reproduction of the entire work is rarely considered fair use. The use of a small, relevant portion is much safer.
4. What effect will this have on the market for the original material?
If your use stands in the way of potential sales for the creator or is easily available for a reasonable price, you should consider licensing rather than copying.

If more of your answers fall towards the green end of the spectrum, your use has a better chance to be considered fair. Too many red answers signify a time when it is best to get permission.

Fair Use Checklist

This Fair Use Checklist can be printed and used to help you make a decision about your use of a work. It’s a good idea to use the checklist and save a copy for your records any time you have to make a decision about fair use.

The Association of Research Libraries has published a Code of Best Practices in Fair Use for Academic and Research Libraries that is also worth consulting.

Section 108

Section 108 deals with different copyright situations that are relevant to libraries and librarians. Mainly, it goes into detail explaining under what circumstances libraries can make copies of works for either themselves or patrons. See a more detailed explanation on the Copyright for Librarians page.

Right of First Sale

A concept known as “right of first sale” is established in Section 109. This section explains that once a work has been sold once, the creator or copyright holder does not really have control over physical copy of the work. This means the owner of the copy is free to lend it or resell it (but not to copy it). This is why resale shops are allowed to sell old books, CD’s, and movies.

Classroom Exceptions

Section 110 of copyright law is particularly important for instructors as it explains how and when copyrighted material can be used in the classroom. For more information, visit the Copyright for Instructors page.

Other Limitations & Exceptions

There are a few other limitations and exceptions established in copyright law but they will rarely come up for the average person. Thus, they will not be described in detail here, but there are links to the text of the law below.