Principles of Fair Use
The 1976 Copyright Act grants the "fair use" of copyrighted materials for a variety of purposes, for the creation of new works, for educational use, and for personal use. Ultimately, fair use can only be determined by a court based on the following "four factors." Users can only make their best, good faith, estimate of whether or not a particular use might be deemed fair use by a court and bear the risks associated with that use.
These ideas, and the fair use principles stated below, are derived from the Fair Use Statute, 17 U.S.C. §107.
1. There are four nonexclusive statutory factors to use in determining whether a use is fair. They are:
1. The purpose of the use, including whether such use is for commercial or for non- profit educational purposes.
2. The nature of the work. (This requires a determination of whether the work is a creative work, a compilation, or a derivative work.)
3. The amount used in relation to the work as a whole.
4. The effect of the use on the market or potential market for the work. (The greater the market effect, the less the likelihood that the use will be fair.)
2. The four factors are not exclusive. Other factors that may be relevant are the availability of the work, the ability to determine whether the work is still under copyright, and the ability to locate the copyright holder.
3. The four factors are necessary because fair use is to be determined on a case-by-case basis in order to protect the rights of users.
4. Attempts to limit the fair use right with quantitative guidelines are without statutory authority.
5. The legal effect of quantitative guidelines is to provide a safe-harbor, i.e., copying within the guideline limits may qualify as fair use. Such guidelines do not, and cannot legally, mean that copying in excess of the guidelines is infringement and not fair use.
6. The limitations on the copyright monopoly in sections 108-120 grant rights to non-copyright holders as to particular type uses; these rights, however, do not negate the general doctrine of fair use, which permits uses in excess of the limitations if the additional uses are fair.
7. The 1976 Copyright Act protects educational fair use with four different provisions:
1. The use of works for "teaching (including multiple copies for classroom use), scholarship and research" as exemplars of fair use (Sec. 107)
2. The distinction between commercial and nonprofit educational use (Sec. 107(1)), a superfluous distinction unless it means special protection for educational use
3. The provision that fair use overrides the limitations on library photocopying (Sec. 108(f)(4))
4. The good faith defense for employees of nonprofit educational institutions, libraries, and archives (Sec. 504(c)(2))
The following duplication activity generally will not, per se, constitute fair use and should not be engaged in by faculty or staff without permission from the copyright owner:
1. Duplication of materials for profit.
2. Duplication of material from published textbooks.
3. Duplication of unpublished materials.
4. Duplication of computer software for multiple use.
5. Duplication of the same materials for classroom use term after term.
Permission was granted to Rollins College by the Board of Regents of the University System of Georgia and Carnegie Mellon University for use of the documents upon which this adaptation was based.