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Creative Commons

Getting to Know Fair Use

Public Domain Mark Fair Use Icon in banner, by Óðinn, identified by Wikimedia, is free of known copyright restrictions.

Limitations & exceptions allow the public to use content without permission. In many countries these include permission for parody, criticism, access for visually impaired, and libraries. Many educational and classroom use falls under fair use, but there are many use cases that can be fair.

 Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

Four factors for determining fair use eligibility:

Purpose and character of use 

Is the use intended for non-profit or educational purposes?

Nature of the copyrighted work 

Is the work more creative, imaginative, or factual?

Amount and substantiality of work

How much of the work is used? Is the heart of the work used?

Potential effect on the market

Does the use harm future or existing market potential?

 

 

The application of a creative commons license does not impact the limitations and exceptions that apply to copyright, such as fair use. In other words, if the use of material is deemed fair use — for example if you use it for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, it is not an infringement of copyright — a CC license does not change that exception. If it is permitted by copyright, it is permitted with CC licensed materials.


Fair use scenarios

In limited circumstances, a doctrine known as “fair use” permits users (such as teachers and authors) to use another person’s copyrighted work without first obtaining the copyright holder’s permission. The animating rationale of the fair use doctrine is to promote public purposes such as commentary, criticism, scholarship, and research.

The Copyright Act instructs courts to weigh the following four factors if a user asserts a fair use defense: i. the purpose and character of the use, with non-commercial use more likely to be fair; ii. the nature of the copyrighted work; iii. the amount and substantiality of the portion used in relation to the work as a whole; and iv. the effect of the use on the potential market for the copyrighted work. 17 U.S.C. § 107.

When you are trying to determine if a use is fair, you should weigh each of these factors, for example, balancing your justification for using the material against the potential effect on the original work’s market.  However, only a court can definitively determine if any particular use is a fair use.

Below you will find a few examples of educational use of copyrighted materials that are intended to help educators better understand how to make fair use determinations. You may also wish to consult the useful Fair Use Evaluator. 

The information presented in this guide is intended for informational purposes only and should not be construed as legal advice. Every fair use claim depends on the specific context of the intended use. While the focus of this guide is fair use, please note that the guide also covers other important exceptions to copyright permitting faculty members to use third-party materials, including the classroom use exception and the category of materials in the public domain.

 

Printed materials

Scenario: A professor copies a portion of one article from a periodical for distribution to the class.

Fair use: Yes. Distribution of multiple copies for classroom use is likely fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.

Scenario: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.

Fair use: No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, then it is more likely to be fair use.

Scenario: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.

Fair use: Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration.

Scenario: A professor wishes to use a textbook she considers to be too expensive. She makes copies of the book for the class.

Fair use: No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to her students, she has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.

 

Scenario: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.

Fair use: No. This conduct, specifically the photocopying without permission, interferes with the marketing monopoly of the copyright owner. The professor may place a lawfully purchased copy of the textbook, not the photocopies, on reserve.

Scenario: A professor of psychology desires to edit and publish a collection of unpublished letters maintained in the library archives.

Fair use: : A court would be unlikely to grant fair use protection in this scenario. However, the answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis.

Scenario: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

Fair use: Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.

Scenario: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.

Fair use: Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is arguably acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.

Video recordings

Scenario: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.

Fair use: No, but the teacher has other legal protection for this use. This use falls under a different section of the Copyright Act, Section 110, permitting display of copyrighted materials in face-to-face classroom teaching activities, since it is for in-person classroom instruction and no admission fee is charged. (Tuition and course fees do not constitute admission fees.) Note that Section 110: i. only protects performance and display, not reproduction; ii. only protects classroom use of lawfully made copies of motion pictures; and iii. imposes higher standards on distance education than face-to-face classroom use.

Scenario: A professor wishes to raise funds for a scholarship. She shows a video of a motion picture on which the copyright has expired and charges admission fees.

Fair use: Fair use is not an issue here, but there is no copyright infringement. The copyright of the motion picture has expired, which places the motion picture in the public domain.

Scenario: A faculty member gives a lecture to a community group in a public library about representations of Colorado in film. He includes in his Powerpoint clips of several famous movie scenes, none longer than 90 seconds.

Fair Use: Yes. This does not fall under the classroom use exception because it is not a presentation to enrolled students. However, it is fair use, as the clips are short, they are for the purposes of education and commentary, and they are very unlikely to dilute the market for the films.

Multimedia

Scenario: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.

Fair use: Possibly yes, but the teacher has other legal protection for this use. The Classroom Use provision, Section 110 discussed above, explicitly permits classroom use of copyrighted material without the rightsholder’s permission. Instructors and students may perform and display their own educational projects or presentations that include third-party copyrighted material in the course of face-to-face classroom teaching activities.

Scenario: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.

Fair use: Possibly yes, but the teacher has other legal protection for this use. The classroom use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations that include third-party copyrighted material in the course of face-to-face classroom teaching activities . If this speech is to a group other than enrolled students (for example, a conference presentation) fair use would likely apply to protect the use. If the musical snippets are short portions of longer works and are intended primarily to complement the lecturer’s commentary, they are unlikely to affect the primary market, and the fair use factors would likely protect the teacher’s use.

Attribution: 

Scenarios are adapted from Copyright and Fair Use for Faculty by Tracey Mayfield, Cathy Outten, and Chloé Pascual licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.