To ensure a balance of the rights of copyright owners and the public interest, the law allows you to use copyrighted works without permission—regardless of medium—when evaluation of the circumstances suggests the use is fair.
This “fair use” provision of copyright law [United States Copyright Act of 1976, Section 107] doesn’t provide hard and fast rules to tell you whether a use qualifies as fair. Instead, the unique facts regarding a use lead you to a reasoned conclusion.
Your evaluation should weigh four factors:
- Purpose and character: If your use is for teaching at a nonprofit educational institution, this is a factor favoring fair use. The scale tips further in favor of fair use if access is restricted to your students or for your personal scholarship.
- Nature of copyrighted work: Is the work fact-based, published, or out-of-print? These factors weigh in favor of fair use.
- Amount used: Using a small portion of a whole work would weigh toward fairness. But sometimes it may be fair to use an entire work (such as an image) if it is needed for instruction or study.
- Market effect: A use is more likely to be fair if it does not harm the potential market for or value of the copyrighted work. But if it does, this could weigh more heavily against fair use than the other factors.
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.
Don’t worry that the answer isn’t crystal clear. Just decide whether the factors weigh enough toward fairness so that you are comfortable not seeking permission. Some suggest reliance on the “golden rule”—if you were the copyright holder, would you see the use as fair and not expect to be asked for permission?
Use a Checklist for Evaluation:
It is generally agreed that it is fair use to make a single copy for your own private study, scholarship or research without seeking permission. However, when you plan to make copies and use protected works for other purposes, you should take a close look at determining if the use is fair.
Several academic libraries provide checklists to help you evaluate whether the use you plan for copyrighted materials is a fair use. Complete a checklist and retain it in your records as documentation of your decision-making process and good faith effort to apply the four factors of fair use.
- Fair Use Checklist (Columbia Copyright Advisory Office)
- Copyright and Fair Use (Stanford University)
Adapted from “Know Your Copy Rights” by the Association of Research Libraries (www.arl.org) under a creative Commons Attribution-NonCommercial 2.5 License (www.creativecommons.org/licenses/by-nc/2.5/)
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