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Copyright in Higher Education: Fair Use

What is Fair Use?

Codified in § 107 of U.S. copyright law, fair use is the acknowledgement that sometimes society is better served by allowing people to use copyrighted materials without going through the process of obtaining permission.  Favored uses specifically mentioned in the statute include "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," but this list is non-exhaustive: any use passing the "four-factor fair use test" can be considered "fair." See the Cornell Law School's Notes related to Section 107 for more details on how to interpret fair use and the development of the law.

How does fair use work?

§ 107 states: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  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.

When deciding whether or not your proposed use qualifies, you should consider each of these factors in turn. Generally speaking if more than half of the four factors favor your use, your use is likely fair use, as indicated by this helpful chart created by Donna Ferullo, Director of the Purdue University Copyright Office (see their Fair Use site for more details on evaluating the 4 factors):

© Donna L. Ferullo. Used with Permission.           

How do I know if the fair use factors favor my use?  

Use this Fair Use Checklist created by Columbia University's Copyright Advisory Office to help you determine whether or not any given factor favors more use. If you have more boxes checked on the "Favoring Fair Use" side of the ledger than the "Opposing Fair Use" side, the factor likely favors your use.

What if I determine that mine ISN'T a fair use?

In that case, you will need to contact the copyright holder to ask for their permission to use their work. For more information, please refer to Columbia Copyright Advisory Office's excellent Requesting Permission page.

What if I'm wrong?

The penalties for copyright infringement can be severe, so it should never be taken lightly. That said, § 504(c)(2) of U.S. copyright law provides the following safe harbor for employees nonprofit educational institutions (like McDaniel College) acting within the scope of their employment:

"The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use."

For this reason you should keep any documents you use when making a fair use determination, such as a completed Fair Use Checklist, on file to demonstrate your good faith effort in determining fair use.

What are the best practices in fair use in my field?

One of the most useful types of resources for thinking through the subject of fair use as it applies to your field are the Codes of Best Practices in Fair Use developed by the Center for Social Media. A list of direct links to these Codes can be found on the left column of this page.

Fair Use Resources

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