Copyright, Fair Use, Creative Commons, Public Domain

Fair use

Fair use is a concept that allows users to "make limited uses of copyrighted works...especially for advancing knowledge or serving other important social objectives," including education, research and criticism, and artistic expression (Crews, 2012, p. 53).  To qualify as fair use, any usage should

• not be used for commercial gain.
• be for "nonprofit educational purposes."
• be limited in terms of how much of the original work is used.
• be sensitive to the nature of the original work.
• not not negatively effect the "potential market for or value of the copyrighted work" (Crews, 2012, p. 54-55).

Fair use is a fairly complex legal concept and it should not always be assumed that just because one is a student or faculty member that one is covered by fair use.

Crews, K. D.  (2012).  Copyright for librarians and educators: Creative strategies & practical solutions.  Chicago: ALA.

Fair use factors

Fair use decisions are based on a balancing of the following four factors:

1. Purpose and character of use
2. Amount of copyrighted work used
3. Nature of the copyrighted work
4. Potential effect on the marketplace of the use

Recent court decisions have tended to focus on the first two factors, using the following language:

• For the first factor, courts have looked at the degree of transformation (called "transformational use"); basically, looking at how a use differs from the original context of a copyrighted work. The more transformative a use is, the more likely it will be considered fair use.
• The amount of a copyright work used is now referred to as "appropriate amount."  Generally, we should use only as much of a work as needed for our context, but sometimes using a larger portion of a work can qualify as a fair use.

17 USC 107: Limitations on exclusive rights: Fair use (the law that defines fair use) states that fair use applies to the following situations:

• Criticism
• Comment
• News reporting
• Teaching ("including multiple copies for classroom use")
• Scholarship
• Research

Some of us may have heard rules like "no more than 10% of a work" can be used, but such concepts are based on the CONTU Guidelines which were published in 1976 and revised in 1978 and were never law.  They are actually pretty good suggestions, but they are not binding and have not been used in copyright decisions for quite some time (if you are interested in this topic, here is a link to a 2020 white paper from the Association of Research Libraries on revisiting the guidelines.)

Fair use resources

Below are some resources to learn more about the concept of fair use: