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 without the copyright holder’s permission and without paying licensing fees. Luther encourages faculty to take advantage of these provisions to the extent legally allowable.
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. The four factors are:
- 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the copyrighted work a nonfiction, published work is a more likely candidate for fair use; the use of a creative and/or unpublished work is less likely to be judged fair use.
- 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 percent 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:
- Fair Use Evaluator Published by Michael Brewer & The ALA Office for Information Technology Policy
- Exceptions for Instructors Published by Michael Brewer & The ALA Office for Information Technology Policy
- Film and Video
- Best Practices for Fair Use in Teaching (pdf) Published by the Society for Cinema and Media Studies
- Code of Best Practices in Fair Use Published by Center for Media and Social Impact
- The Code of Best Practices in Fair Use for Academic and Research Libraries The Code of Best Practices in Fair Use for Academic and Research Libraries was released by Association of Research Libraries (ARL) in partnership with the Center for Social Media and the Washington College of Law at American University.
- Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes Published by Television Licensing Center