The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. However, the complexity of fair use mean individuals in academia must make judgments concerning how to implement it in a manner consistent with the legal standards and practice.
The following four factors are used to determine if a use is fair:
* Not all uses in an academic context are automatically considered fair use!
| Weighs in Favors Fair Use | Weighs Against Fair Use |
|---|---|
| The use is for the purpose of teaching in a non-profit educational institution. | The use is for a commercial purpose. |
| The use is for criticism, comment, news reporting, parody or transformative presentation. | Mirror image copying without the addition of criticism, comment, news reporting or parody or transformation of presentation or use. |
| The use is necessary to achieve an intended educational purpose. |
The use is not necessary to achieve an intended educational purpose. |
| Distribution is limited by password to students within a class for the term of the course. | Unlimited or uncontrolled distribution. |
| Weighs in Favor of Fair Use | Weighs Against Fair Use |
|---|---|
| The work is non-fictional in nature. | The work is fictional or highly creative (art, music, novel, film, play, poetry). |
| The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work. | The work is non-fictional in nature and, author opinion, subjective description and evaluative expression dominate the work. |
| The work is a “non-consumable” work (e.g., standard book or similar). |
The work is a consumable work (e.g., workbook or test). |
| The original work has been published. | The original work has never been published. |
| Weighs in Favor of Fair Use | Weighs Against Fair Use |
|---|---|
| A small amount such as one chapter or less of the work is used. | Large portion of the work/multiple chapters of the work are used. |
| Amount used is narrowly tailored to accomplish a legitimate purpose in the course curriculum. |
Portion used is central to the work or the “heart of the work.” Amount used is more than necessary to accomplish a legitimate purpose in the course curriculum. |
| A small amount of the work is used, and you have concluded that both the “effect on the market”(Factor 4) and the “purpose and character of the use” (Factor 1) favor fair use. | Large portion of the work is used, and you have not concluded that both the “effect on the market” (Factor4) and the “purpose and character of the use” (Factor 1) favor fair use. |
| Weighs in Favor of Fair Use | Weighs Against Fair Use |
|---|---|
| A legally obtained copy is available (owned by the library), and a conveniently and efficiently accessible and reasonably priced digital license is not available. | The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is available. |
| The work as a whole is not available for purchase, and a digital license is not available. | The work as a whole is not available for purchase, and a digital license is available |
Fair Use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder.
