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Copyright & Fair Use

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Fair Use in the Law

Section 107 of the Copyright Act permits the reproduction of copyrighted works when done for the purpose of criticism, comments, news reporting, teaching, scholarship and research and when the balance of four factors specified in the statute weighs in favor of a finding of fairness. The four factors of fair use as enumerated are as follows:

Four Factors of Fair Use

Purpose and Character of the Use

  • Educational or Commercial
  • Transformative or Reproduction
  • Spontaneous or  Repetitive

Amount & Substantiality of the Portion Used

  • Small amount vs. Larger quantity than needed to meet pedagogical objective
  • Selection is or is not considered “heart of the matter”

Nature of the Copyrighted Work

  • Technical or Artistic
  • Factual or Imaginative
  • Published or Unpublished

Effect of the Use on the Market

  • Alternative to students purchasing original work?
  • Ready market for the original?
  • Avoiding payment of royalties?

No one factor is weighed more heavily than another, although courts, over time, have seemingly given more attention to one factor over the others. Further, the Copyright Act does not specify what quantity or quality of a work constitutes fair use; however, various non-profit and educational groups have adopted "rules of thumb" for fair use determinations (e.g. "rule of five" of the CONTU Guidelines). Remember, these "rules of thumb" do not guarantee a finding of fair use. Application of the factors is always the best practice.