What exactly is fair use?
Fair use is an educational exception written into the law. According to Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:
- The purpose or character of the use
- The nature of the copyrighted work
- The amount and substantiality used in relation to the work as a whole
- The effect of the use on the market, or potential market, and the value of the work
How can I use fair use?
Fair use is a defense. Fair use is an exception to copyright law allowing the use of copyrighted materials without permission for certain purposes. A finding of fair use is based on the four factors above, and each factor must be weighed equally. If you believe your use falls under fair use, you can use a fair use checklist to objectively weigh your factors.
You may be relying on fair use and not even realize it. A lot of common practices in teaching, learning, and research fall under fair use or other educational exceptions. There are some illustrative examples outlined in the law such as teaching, research, criticism, commentary, parody, and news reporting, but there are more uses possible. Fair use is written to be flexible and adapt to shifting patterns and emerging technologies.
Okay, so what’s an example of fair use?
Again, there are common practices written into the law for educational and socially important purposes. A student using a quote from a novel to comment on the themes presented by the author in a research paper, or a figure taken from previous publication used in a thesis or dissertation. Even popular mediums rely on fair use, for example a Saturday Night Live clip may rely on parody to comment or criticize the current political climate or politician.
How do I know if my use is a fair use?
Technically, fair use can only be determined by a judge or jury. But there are steps and strategies you can take to protect yourself and your use. A good faith effort can strengthen a fair use argument, as can using tools like fair use checklists or evaluators to critically examine your use.
So anything I use for teaching or research is fair use?
There are no shortcuts or bright-line rules written into the law for fair use. It’s common to hear misconceptions like, “All educational use is fair use,” or “Using 10% of any work is okay,” but guidelines like these do not exist in the law. Indeed, not all educational uses are fair use and sometimes using a whole work or substantial part can still be fair use. The best strategy is to carefully balance the four factors based on your intended use.