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Copyright Compliance: Fair Use

Information intended to encourage and support copyright compliance as faculty members design effective course readings, lectures, and other educational materials, whether for the physical classroom or an online teaching environment.

Attention!

This guide provides legal information but does not constitute legal advice.

Fair Use: Resources

Code of Best Practices in Fair Use for Academic and Research Libraries - ARL
Fair Use Checklist - Columbia University
Fair Use Check List - Copyright Clearance Center
Fair Use Index - U.S. Copyright Office 

Safe Calls

In general, fair use arguments can be made when limited amounts of copyrighted material are used for educational purposes, the audience for which is limited to students enrolled in a particular class (by providing access to the materials in a password-protected environment, such as Moodle), and offered in formats that are not susceptible to further copying/downloading.

Providing links to online materials (rather than copying them) and favoring streaming versions (rather than a downloadable format) of audiovisual material is also a safe call because no copies are being made.

 

What is Fair Use?

Fair use is a legal doctrine that allows for limited use of copyrighted material in certain circumstances.  It involves consideration of four factors, as outlined in 17 U.S.C. §107 and expanded upon in the various court cases that have applied and interpreted the law.  Determining whether a use is fair (and therefore not infringing) must be done on a case-by-case basis dependent on the particular facts.  To get a definitive answer about whether something is a fair use requires resolution in a federal court, but in most cases, you can rely on best practices and checklists that apply the four factors to a known set of facts. 

Making the Determination - Four Factors

17 U.S.C. §107 tells us that "the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

To determine whether your intended use of a copyrighted work is a fair use, you should weigh the following considerations: 

  • Purpose: Non-commercial uses at non-profit institutions are favored, and teaching, scholarship, and criticism are explicitly enumerated as non-infringing uses.
  • Nature: It may matter whether the copyrighted work is factual or fictional.  The law favors use of factual materials, such as biographies or documentaries, over highly creative works, such as novels and feature films.
  • Amount: The smaller the amount of the copyrighted work you intend to use, the better.  Even a very small amount can be prohibited, however, if it is considered the "heart" of the work.  You should limit the amount to only what is pedagogically necessary.
  • Market Effect: It may not be a fair use if your intended use would adversely affect the potential market for the copyrighted work. Be wary of photocopying from textbooks, workbooks, and other "consumable" material.

A recent trend in the courts considers the concept of transformativeness.  If your use significantly transforms the work (such as use for criticism, scholarship, or parody), or the purpose of the work (such as social work students examining a workbook actually intended in the general market for patient/client use), this transformativeness will likely affect the fair use argument favorably.

It is important to remember that all four factors must be considered together; no single factor controls the strength of the argument.  In using copyrighted work in your courses, you will often be able to claim a fair purpose (i.e., teaching, scholarship, criticism), but you still must consider the nature of the work, the amount you intend to use, and the effect on the potential market for the copyrighted work. It is always a good idea to document your consideration of the four Fair Use factors at the time of your use of the work and retain for your records; doing so demonstrates your good faith effort to comply with copyright law.