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Copyright Guide - Longview

A guide for students and faculty.

What is Fair Use?

Recent Developments: The Georgia State University "fair use" case, which decided in favor of Georgia State's practice by faculty members of scanning books and journal excerpts and hosting them in the university’s electronic reserves, was reversed and remanded by the Court of Appeals of the 11th Circuit on October 17, 2014, see case here. The court affirms that the 1976 Classroom Copying Guidelines are not law and only informative, they were originally intended as a floor, not a ceiling, on fair use. The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. The case has been sent back to the lower court for reconsideration. Please note that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In Missouri, we can look to these opinions for guidance, but we can also explore different paths. 

Fair Use is defined in, Section 107 of the U.S. Copyright Act, and that section has been examined and developed in court rulings. Judges have used four factors to determine what constitutes fair use. It is important to understand that these are only guidelines and are frequently being examined and changed by the court system. The fair use provisions of the Act explicitly list several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. But be careful, a finding of fair use requires a balancing of all four factors listed below.

One exception to this exclusive right is called "the fair use exception." The fair use exception permits the reproduction of a small portion of a copyrighted work without the copyright owner's permission, but only under very limited circumstances.The purpose is to allow students, scholars, and critics the right to reference a copyrighted work in their own scholarship, teaching, and critiques.

The four factors judges consider are:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

Since the inception of the copyright laws, various organizations such as CONFU, ALA and AAUP have established guidelines for educational use. These guidelines are NOT part of the Copyright Act.

For more information, we suggest looking at:

The ALA Fair Use Evaluator

The Cornell University Fair Use Checklist

The Columbia University Fair Use Checklist

The Purpose and Character of Your Use

When taking portions of copyrighted work, ask yourself the following questions:

  • Has the material you have taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

The Nature of the Copyrighted Work

This factor focuses on the work itself. The legislative history states that there is a definite difference between reproducing a short news note and reproducing a full musical score because of the nature of the work. Moreover, some works, such as standardized tests and workbooks, will never qualify for fair use because by their nature they are meant to be consumed. Uses of factual works such as scientific articles are more likely to fall within fair use.

The Amount and Substantiality of the Portion Taken

This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a fair use. Amount and substantiality is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the "heart of the work."

The Effect of the Use Upon the Potential Market

Courts use this factor to determine whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes the potential market for the use that the owner is already exploiting or can reasonably be expected soon to exploit. Even if the immediate loss is not substantial, courts have found that, should the loss become great if the practice were to become widespread, then this factor favors the copyright holder.