Copyright & Fair Use: Fair use

Circular 21: Reproductions of Copyrighted Work by Educators and Librarians

Fair Use Evaluator

Educational Exemptions

Fair Use Codes & Best Practices

Fair Use Checklist (Columbia U. Libraries)

Fair Use

The Copyright Act of 1976 recognized that there may be times when the exclusive rights of a copyright owner should be limited, particularly when the material is being used for educational purposes by non-profit organizations.  Therefore, Congress asked the register of Copyright to develop specific guidelines to cover such instances.  These are known as the "Fair Use Guidelines." These guidelines were established in an agreement with representatives from the publishing industry (music, print, and media) and a Congressional Committee called the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revisions.  Fair use of copyrighted material depends on the following four factors:   

• The character and purpose of the use (whether it is for commercial or not-for-profit ; For entertainment or education, etc.) In addition, the courts will decide if the use has been of a derivative or a transformative nature. Derivative use of a work means the copyrighted work has been just recasted, or presented in a new mode like a translation, or an adaptation. Derivative works always need the permission from the original work's copyright holder unless the use falls into fair use guidelines. Transformative use of a work means a new work has been created based on the original work such as commentaries, analysis, etc. The transformative work should have a new meaning and supersede the objects of the original creation. Transformative works usually fall into Fair Use Guidelines.

• The nature of the work (the type of materials i.e. print, video, fiction or non-fiction, etc.) (how relevant is the use in relation to the purpose)

• The amount of the work copied/used in relation to the a body of the work as a whole (how reasonable is the amount used in relation to the purpose)

• The effect of the use of the copied/used material on the market (depriving someone of profits from the sale of material)

Fair use guidelines have two functions. First, they are used as self-test criteria by the users of copyrighted works to find out if their use falls into these guidelines and so it is legal. Second, they are used by the courts to find out if there is an infringement of the copyright by the defendant.

Guidelines that have been developed to help make Fair Use a less complex issue do not carry the weight of law and should not be considered as having a "safe harbor" impact as all fair use is evaluated on the four factors.  Guidelines are generally seen as establishing minimum usage and this guide hopes to move beyond just listing details from these early attempts at simplifying fair use. Links to these guidelines and to links that provide general guidance in the use of copyrighted works (See Fair Use Evaluator) can be found on this page.   Librarians can assist in locating information about particular types of fair use and help in understanding related concepts like licensing, open access, seeking permission, etc.  Some questions on fair use will need to be referred to the Office of Legal Counsel.

See related UIW Policies:  Chapter 14 - Intellectual Property and Chapter 17 - Copyright.