Copyright and Fair Use

"Fair Use" is an aspect of copyright law that in some instances allows for the reproduction of reasonable portions of a copyrighted work without the need to secure permission from the copyright holder.

Title 17, Chapter 1, Section 107 of the U.S. Codes states that it is not an infringement of copyright when portions of a copyrighted work are reproduced "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Without this important exception, it would be necessary to seek permission from the copyright holder for even the smallest quotation or reproduction.

 

When is it fair use?

There are no absolute criteria for determining whether or not a proposed use of a work qualifies as fair use. Instead, the law lists four factors that must be considered in order to determine if a particular use is fair. Those factors are:

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 greater the strength with which each criterion can be addressed, the more likely the use can be considered fair. See 17 U.S.C. § 107 in Links and Recommended Readings for more information.

Some examples of “fair use” are:

• The reproduction of a small part of a work by a teacher or student to illustrate a lesson;
• The quotation of a short passage from a book for purposes of illustration or comment; or
• A quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations.

 

Fair Use for Education

Remember, there is no blanket exemption for educational and scholarly purposes, however the following guidelines may be helpful for determining fair use for education. 

I. Single Copying for Educators . A single copy may be made of any of the following by or for a teacher at their individual request for their scholarly research or use in teaching or preparation to teach a class (provided there is no violation of section III below regarding prohibitions):

1. A chapter from a book;
2. An article from a periodical or newspaper;
3. A short story, short essay or short poem, whether or not from a collective work;
4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

II. Multiple Copies for Classroom Use . Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

1. The copying meets the tests of brevity and spontaneity (as defined below);
2. Meets the cumulative effect test (as defined below);
3. Each copy includes a notice of copyright; and
4. There is not a violation of Section III below regarding prohibitions.

III. Prohibitions as to I and II Above . Notwithstanding any of the above:

1. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
2. There shall be no copying of or from works intended to be ''consumable'' in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
3. Copying shall not:
   1. substitute for the purchase of books, publishers' reprints or periodicals;
   2. be directed by higher authority;
   3. be repeated with respect to the same item by the same teacher from term to term.
4. No charge shall be made to the student beyond the actual cost of the photocopying.

Definitions:

Brevity

(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words (may be expanded to complete an unfinished line of a poem).

(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words (may be expanded to complete an unfinished prose paragraph).

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) ''Special'' works: Certain works in poetry, prose or in ''poetic prose'' which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph ''ii'' above notwithstanding such ''special works'' may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

(The limitations stated in ''ii'' and ''iii'' of Cumulative Effect shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)