Copyright: Fair Use

What is Fair Use? In the most essential terms, fair use allows for the copying of copyrighted material without seeking permission.

Examples of When You Can Claim Fair Use

• One-time, spontaneous, use of a work (designed to capture the teachable moment). For example, if there is insufficient time to obtain permission from a recently published article.

• Logical, comprehensive compilations such as the phone book

• Common/Standard works such as a calendar

• US Government published works (however, those printed by a commercial printer may need copyright permission).

• Facts

• If a book ordered from the bookstore doesn’t arrive in time, you can make one chapter copy at a time until the book arrives going under the premise that your students will purchase the book when it arrives, thus not prohibiting the author from royalties.

• Newspapers

• Books and Periodical Issues/Volumes (no photocopy is being made so copyright permission isn’t necessary).

• Any item to which you are the copyright holder.

• Works for which copyright has expired (As a rule of thumb, works published within the past 75 years should be considered protected works).

Examples of When You Cannot Claim Fair Use

• Workbooks, exercises, standardized tests, test booklets, answer sheets, etc. are examples of consumables so you may not claim "fair use".

• Copying should not be used as a substitute or replacement for anthologies, compilations, or collective works (i.e. Readers or Course Packs) unless permission is obtained.

• An item acquired through Interlibrary Loan cannot be placed on reserve unless the circumstance is unusual.

• Items obtained commercially (such as from a video store) cannot be placed on reserve.

• If you have previously claimed fair use for that work.

Online Issues

• You cannot claim fair use for someone else’s e-mail unless you get permission, or, paraphrase and cite.

• Internet/WWW pages are copyrightable but subject to fair use guidelines.
  Note: Consider providing students with the URL instead of a hard copy of the web site.

• A hardcopy of an article printed from a database to which we subscribe undergoes the same consideration as its print equivalent.
  Note: Consider providing students with directions to the online article so they may access it themselves.

Four factors to consider when claiming Fair Use (Section 107 of the Copyright Law)

• Purpose and character of use: Is use for profit or non-profit?

• Nature of the copyrighted work: Historically, fair use of scholarly work is accorded greater latitude except when copying is systematic and large scale

• Amount and substantiality of the material used: How much of the work is used (both qualitatively and quantitatively)? That is, what is the portion used in relation to the whole?

• Effect of the use on the potential market of the work: This criterion deals specifically with actual or estimated market loss

Three Fair Use tests for providing copies for classroom/library reserve use (to be used in conjunction with the four factors for claiming Fair Use)

• Brevity - amount copied should be brief relative to the whole of the work

• Spontaneity - Designed to capture the "teachable" moment. If you have enough time to secure copyright, you should do so.

• Cumulative Effect - Aggregate uses that rise to such a proportion that copyright holder suffers economically. For example, as a result of many one-time or class-sized unauthorized uses

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updated 13 September 2006