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Fair Use

'Fair Use' refers to Section 107 of the Copyright Act which specifies conditions under which materials afforded copyright protection may be used for specific purposes. As a non-profit educational institution, fair use provisions allow faculty, staff, and students at Luther College latitude to use materials in ways that would be otherwise prohibited or that would incur copyright clearance fees. Luther encourages faculty to take advantage of these provisions to the extent legally allowable.

The following is Section 107 including the legal definition of 'Fair Use.'

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Practicing fair use involves considering the following four factors and balancing the results. In some cases, one factor may point toward fair use, another away from it. Good faith efforts, however, should lead to reasonable fair use judgments. These, in turn, provide a real level of protection from statutory damages in the event of a claim of copyright infringement.

  • Purpose of the use teaching and learning efforts favor fair use; money-making, commercial purposes do not.
  • Nature of the copyrighted work a nonfiction, published work is a more likely candidate for fair use; the use of a creative and/or unpublished work is less likely to be judged fair use. However, photocopies of pages from a textbook or a workbook developed for the classroom is less likely to be considered fair use since the harm to the potential market for the work is more direct.
  • Amount of the work used less is better; a single chapter or article lends itself to fair use more than multiple chapters or articles; using 10 percent of a work is more likely to be judged fair use than using 50% of a work.
  • Effect on the potential market for the work owning an original copy of the work and making only one or a few copies is more likely to be viewed as fair use; making numerous copies available or repeatedly using the same work lessens fair use claims, especially when the work is readily available for sale or affordable permission is easily obtainable.

The following online tools can assist community members in weighing the 'fair use' merits of any individual work: