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Copyright

#copyright #fairuse

What Is Fair Use?

Principles of fair use allow individuals to make single copies of copyrighted works for their own research and study or to use copyrighted material in the classroom for presentations or assignments. These principles also allow faculty to make multiple copies of copyrighted material for use in classroom instruction. However, if that same material were placed on a website, used in a newsletter, or mounted to social media, permission from the copyright holder would be required. Without permission, such actions are infringements and potentially subject to civil and criminal charges.

Four Factors of Fair Use

There are no hard-and-fast rules about what constitutes fair use. Determining whether the use of copyrighted material is fair or an infringement requires individual evaluation, particularly in relation to the following four factors:

1. Purpose and character of the use

  • Has the work simply been copied? If so, it may not be fair use.
  • Has the work been transformed in some way? If it is altered significantly, used for another purpose, or appeals to a different audience, the likelier it is fair use.
  • Is the work being used for nonprofit or educational purposes? If so, it is more likely to be fair use. However, there are additional considerations that educators must make when determining whether an educational use is fair.

2. Nature of copyrighted work

  • Is the work published or unpublished? Unpublished works are less likely to be considered fair use.
  • Is it out of print? If so, it is more likely to be fair use.
  • Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be fair use.

3. Amount and substantiality of portion used

  • If the amount used is over 10% of the entire work, the use is more likely to be unfair.
  • Will it adversely affect the author's economic gain? Using the "heart" or "essence" of a work is less likely fair use.

4. Effect of the use on the potential market for the copyrighted work

  • The more the new work differs from the original, the less likely it is an infringement.
  • Does the work appeal to the same audience as the original? If so, it is more likely infringement. 
  • Does the new work contain anything original? If it does, it is more likely fair use.

Timeliness

An addition consideration for faculty is the timeliness of their need to use the material.

  • Uses (particularly in the case of making multiple copies of a work) must be brief, no more than the 10% mentioned above, and spontaneous.
  • A use is spontaneous If you realize you need to make copies of an article or a chapter close to the time the copies will be used. You can make copies for students officially enrolled in your class--so long as you only do this once. If you use something repeatedly--that is from semester to semester--, it is not fair use. To continue using copies in later semesters, seek permission from the copyright holder and pay fees if required.

Special Works

A Note on "special works"...

  • These are "Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience" --that is, picture books, or heavily illustrated books.
  • Special works should never be copied in their entirety.
  • An excerpt of no more than two pages or 10%, whichever is less, is allowed.
  • The use of the copies should be for one course at one school.
  • The copies should include a notice of copyright acknowledging the author of the work.

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