The intention of copyright law in the U.S. is to help foster a healthy intellectual and artistic community. For this reason it is important that the rights of the creators are respected. But this alone would not be enough!
Access to intellectual works, so that ideas can be discussed, challenged, refined and built upon is crucial. If the hands of educators, students, and the intellectual community at large were completely tied by the copyrights of creators, this would not be possible. There are also free speech considerations involved. In 1976, to help balance these important factors, title 17 of the U.S. Code section 107 describes a special category in the use of copyrighted works called "fair use." In this situation the permission of the copyright owner is not required in order to use a copyrighted work.
Fair use determinations often fall in to two categories: comment and criticism and parody. Comment and criticism are clearly important parts of the educational process! And parody is an important demonstration of a person’s right to free speech. But when do the scales tip away from a fair use into a situation where the use of a work puts the creator at a significant and unfair disadvantage?
There is no magic formula that will generate a definitive answer for all cases, but there are four factors that the U.S. Code takes into consideration. These are listed below. A fair use determination is made based on all four, with no one factor taking priority. For this reason it is important to understand that just because a work is being used for educational purposes – this does not automatically mean that this use can be considered a “fair use” one, without addressing the other three factors.
Checklist and guidelines can be useful when trying to decided if a particular situtation can be considered "fair use".
If you still are unsure, or have any questions, get in touch with your liaison librarian on the university’s Scholarly Communications Librarian, Laura Hanscom.
Here are the four factors that determine whether "fair use" can be applied to a situation:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The determination is based on a balance of all four factors, no one single factor can be relied upon to the exclusion of the others.