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The Fair Use Exception
The Copyright Act gives the owner of a copyright the exclusive right to reproduce and distribute their work. One exception to this exclusive right is called "the fair use exception."
The fair use exception permits the reproduction of a portion of a copyrighted work without the copyright owner's permission, under certain circumstances.
This is a vitally important exception for education, as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship, teaching, and critiques.
"Professor Eric Faden of Bucknell University provides this humorous, yet informative, review of copyright principle:"
Fair Use Evaluation
There's no one right answer as to what constitutes a fair use of a particular copyrighted work. The answer varies from situation to situation.
Four factors are considered in all fair use evaluations. They are:
- Purpose & character
- Purpose: Is the copyrighted material being used for commercial or nonprofit educational purposes? Fair use favors educational purposes, but commercial entities can also take advantage of fair use
- Character: Is the use of the copyrighted material transformative? (i.e. subjected to scholarly analysis, remixed, parodies, etc.)
- Nature of the work
- Has the work been previously published? Is the work primarily factual or creative in nature? Is this work created and/or marketed as a textbook or an educational consumable (i.e. workbook, etc.)?
- How much of the work is being used? How important is the portion being used? If you are using the whole work, is it clear that no less than the whole work will be effective (i.e. photograph, poem, etc.)?
- Is the work in-print? Is it available licensed elsewhere? Is there a market for the work? Can you identify the copyright holder? Did the copyright holder respond to a request for permission? Did you acquire this copy legally? Will you be able to attribute the original author?
These four factors are not meant to be exclusive and must be examined together. The statute does not indicate how much weight is to be accorded each factor, therefore, it is advisable to treat the four factors equally.
For help in making a fair use evaluation, please see the links below. The Columbia checklist is a printable PDF, while the American Library Association's Evaluator walks you through creating a fair use document for your records. In the event of a lawsuit, having such a document may help you prove you made a good faith effort to comply with the fair use clause of U.S. Copyright Law.
American Library Association Fair Use Evaluator
This is the Scholarly Communication Librarian's favorite tool. It provides useful language for describing proposed uses and creates a PDF that can be saved and printed for your records.
Columbia University Fair Use Checklist
In addition to a link to a checklist, this site gives some background on fair use.
Fair Use Index
A listing of fair use cases that have gone to trial and how they resolved (fair use, not fair use, mixed) in different areas, including scholarship and creative work.
Using the American Library Association Fair Use Evaluator tool, a librarian completed the following analysis using the language the American Library Association provided and adding in additional information she felt was important. Please note that this document is offered as an example only.
Check out the full text of her evaluation here: