Fair Use allows the public to use parts of a copyrighted work for criticism, scholarship or teaching. This is the section of the copyright code that describes the special rights of educators in not-for-profit institutions. But what Fair Use is isn't always easy to determine.
When you are trying to decide if the copying you want to do is "fair use", you have to review four factors. Fair Use is a balancing test. You review the factors below and decide whether, on balance, your use is Fair Use or not. Essentially you are becoming your own advocate.
The four factors considered when arguing Fair Use are:
1. The purpose of the use.
Why are you making this copy? For educational purposes? Courts are more likely to find a non-profit educational use to be Fair Use. Or for commercial gain? The courts tend to find that if you are making money off the work, you can afford to pay the original creator to use it. Commercial use is less likely to be deemed Fair Use.
2. The nature of the publication.
Was the original work creative? If it was a work of fiction (and especially if it was expensive to make, such as a movie) the courts will be less likely to consider using it to be Fair Use. Factual creations have less protection from the courts. Also, was the original work published or unpublished? If it was unpublished, the courts are far less likely to find Fair Use.
3. The amount of the work used.
When only a small amount of the work is used, the more likely it is that the courts will find that the use is fair. If you choose the “heart” of the work – the most important part of it – the courts are less likely to find Fair Use.
4. The effect on the market for the work.
Is your work going to complete in the market against the work? Perhaps even replace the work? If so, the courts will probably find your use is not Fair Use. If you copy chapters of a book, rendering it unnecessary for your students to purchase it as a required text, this is probably not going to be seen as Fair Use.
Consider your use. If you are copying materials to give to your classes, and you want to argue Fair Use, take a moment to consider these factors . Then make your argument, based on the four factors listed above, and evaluate it. Do you believe your use is Fair Use?
There are no definite rules about how many factors need to weigh in your favor in order to have a court decide that your use was Fair Use. There is some speculation that courts tend to give a little more weight to the fourth factor, the effect on the market for the original use.
Checklist for Fair Use. After you have considered all these factors, fill out a Fair Use Checklist and keep it for your records. If you are ever questioned about your copying, you can easily reconstruct your argument. (Be sure to read the introduction.)
Current copyright laws permit non-profit educational institutions to photocopy copyrighted materials under certain limited conditions:
Poetry: A complete poem if less than 250 words (not to exceed two pages) or an excerpt of not more than 250 words from a longer poem.
Prose: A complete article, story or essay of less than 2,500 words or 10% of the work, whichever is less.
Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
The decision to use the work and the moment of its use for maximum teaching effectiveness must be so close in time that it would be unreasonable to expect a timely reply to a request to photocopy.
1. The copying of the material is for only one course in the school in which the copies are made.
2. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, or more than three from the same collective work or periodical volume during one class term.
3. There shall not be more than nine (9) instances of such multiple copying for one course during one class term.
4. The same teacher cannot copy the same item without permission from term to term.
5. Unauthorized copying may not substitute for the purchase of books, publisher's reprints or periodicals.
6. The original copyright notice must appear on all copies of the work.
Permission to copy any material not fitting the above description must be obtained from the publisher's Copyright and Permissions Department prior to photocopying the work. The earlier you request permission, the better, in case it cannot be granted and you need to substitute other materials. Attach a copy of the permission from the publisher to the requires for photocopying. The print shop staff assistant will not copy any materials which do not meet the above guidelines unless permission is attached.