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Fair use of copyrighted materials

Intro | First steps | Quick guides to fair
use in context | Four-factor test |
Permission

What is fair use?

For those of us who would appreciate a
clear, crisp answer to that one, we're in luck. The Center for Social Media and
Washington School of Law at American University are sponsoring development of a
growing number of Fair
Use Best Practices statements that inform a fresh approach to the subject
and make it easier than ever to know what's fair. The Best Practices statements
follow recent trends in court decisions in collapsing the Fair Use Statute's
four factors into two questions: Is the use you want to make of
another's work transformative -- that is, does it add value to and repurpose the
work for a new audience -- and is the amount of material you want to use
appropriate to achieve your transformative purpose? Transformative
uses that repurpose no more of a work than is needed to make the point, or
achieve the purpose, are generally fair use.

But what if your purpose is not
transformative? For example, what if you want to copy several chapters from a
textbook for your students to read? Textbooks are created for an educational
audience. When we are the intended audience for materials, or when we use a work
in the same way that the author intended it to be used when she created it, we
are not "repurposing" the work for a new audience. Or what if you are
repurposing the work for a new audience and adding value to it by comparing it,
critiquing it or otherwise commenting on it, but you want to use a lot more than
is really necessary to make your point?

In cases like these we also look at whether
the copyright owner makes licenses to use her work available on the open market
-- whether there is an efficient and effective way to get a license that lets us
do what we want to do. If not, the lack of the kind of license we need to use
the materials supports our relying on fair use due to the market's failure to
meet our needs. If you would like to know more about a case on the subject of
nonprofit educational non-transformative uses, please read Georgia State
Electronic Course Materials Case.

Don't forget, however, that fair use exists
within a larger context. When we create materials in an educational setting,
fair use is part of a web of authority we rely on to use others' works. No one
strategy is enough today. Our libraries license millions of dollars' worth of
academic resources for our use every year. And there are millions of Creative
Commons licensed works available online. We rely on implied licenses to make
reasonable academic uses of the works we find freely available on the open Web.
And we rely on fair use. If you can't find what you want to use among your
libraries' offerings, or on the Web or through Creative Commons, and your use
doesn't qualify as fair use, getting permission is
becoming easier every day. The Copyright
Clearance Center now offers both transactional (item-by-item) licenses and
subscription licenses to colleges and universities. And if you conclude that
your use is not fair, but you can't license access to the work, circle back
around to fair use again, because the lack of availability of a license weights
in favor of fair use.

There are
many other excellent resources online providing guidance for the use of the four
fair use factors. See, for example, IUPUI's Fair Use Checklist,
UMUC's Copyright and
Fair Use in the Classroom, on the Internet and the World Wide Web,
University of Minnesota Libraries' Fair Use Analysis
Tool, and the many wonderful statements of Fair Use Best
Practices published by or with the Center for Social Media and Washington
School of Law, just to name a few.

Please keep in mind that the information
presented here is only general information. True legal advice must be provided
in the course of an attorney-client relationship specifically with reference to
all the facts of a particular situation. Such is not the case here, so this
information must not be relied on as a substitute for obtaining legal advice
from a licensed attorney.

First steps

You may not need to worry about copyright at all! Many works are not
protected, or are already licensed
to you or your institution for the uses
you wish to make.

1. Unprotected works

Copyright does not protect, and anyone may
freely use:

Works that lack originality

logical, comprehensive compilations (like the phone
book)

unoriginal reprints of public domain
works

Works in the public
domain

US Government works

Facts

Ideas, processes,
methods, and systems described in copyrighted works

The presence or absence of a copyright
notice no longer carries the significance it once did because the law no longer
requires a notice. Older works published without a notice may be in the public domain, but for works
created after March 1, 1989, absence of a notice means virtually nothing.

Lolly Gasaway and by Peter Hirtle
explain the  rules for determining whether a protected work is in the
public domain in two excellent resources. These rules are complex and somewhat
hard to describe, partly because they changed many, many times during the 20th
century. At their most basic, excluding anonymous works and works for hire, the
rules can be sumarized as follows:

Any work published on or before
December 31, 1922 is now in the public domain.

Works published between January
1, 1923 and December 31, 1978, inclusive, are protected for a term of 95 years

from the date of publication, with the proper notice.

But, if the work was published between 1923 and December 31, 1963, when
there was a non-automatic "renewal term,"
the copyright owner may not
have renewed the work. If he or she did not renew, the original term of
protection (28 years)
will have expired and these works will be in the
public domain. Check the Stanford
"Determinator" to determine renewal status for books published during
these years.

After 1978, the way we measure the term of protection changes. It no
longer begins on the date of publication, rather, it
runs for 70 years from
the date the author dies (called, "life of the author" plus 70 years).
Further, publication is irrelevant.
Works are protected whether they are
published or not.

Finally,  those works that were created before
December 31, 1978, but never published, are now protected for

the life of the author plus 70 years.

2. Library-licensed works

Check your library's databases and catalogs. They may already have just what
you need.

3. Creative Commons licensed works

Learn to do effective Creative
Commons searches! You may find exactly what you need with the rights you
need to use it, available online for free.

4. Is the work available freely on the open Web without an express
permissions statement,
and therefor covered by an implied license?

All of us who place materials on the open
Web do so knowing that people will use our works in certain ways (downloading,
making personal copies, sending copies to friends, etc.). This is the essence of
an implied license. I put my materials out there and even though I don't
"expressly" give you the right to do these things, the law assumes that I must
have intended to give you the right to do what a reasonable copyright owner
would expect the public to do. Most nonprofit, educational uses would likely be
within the scope of what people expect when they place materials on the open
Web. The scope of this license might be the same as or different from fair use,
but it's good to know that we have both. Providing attribution should become
automatic for you, whenever you use others' works.

Fair use exemption

As described above, courts today tend to collapse the four fair use factors
into two questions: Is the use you want to make
of another's work transformative -- that is, does it add value to and repurpose
the work for a new audience -- and is the amount of material you want to use
appropriate to achieve your transformative purpose? If a use is
not transformative, or if the amount you want to use goes beyond what you need
to make your point, look at market availability. We can start with a few quick
suggestions regarding the types of uses that we most commonly make of others'
work on campus to implement that approach. Then, we can look more closely at the
fair use statute's four factors to see how they can help you for more difficult
cases.

Coursepacks,
reserves, learning management systems and other platforms for distributing
course content, such as iTunes U

Image, audio
and audiovisual archives such as an Art History slide collection or audio
or audiovisual collection

Creative
uses

Research
copies

Coursepacks, reserves, learning management
systems, iTunes U and other platforms for distributing course content

For transformative uses, use no more than you need to achieve your
transformative purpose.

If you need to use materials in essentially the same way or for the same
audience as the author intended, or you use more than necessary to achieve a
transformative purpose, limit materials distributed in coursepacks, through
reserves, learning management systems and iTunes U to:

single articles or chapters from longer works (works of 10 or more
chapters total),
or other small parts of shorter works or those with 9 or
fewer chapters (10% of less);
several charts, graphs or illustrations;
small parts of works such as performances (audio, video)

copies of materials that a faculty member or the library already possesses
legally
(i.e., by purchase, license, fair use, interlibrary loan,
etc.)

Always include

any copyright notice on the original

appropriate citations and attributions to the source

a Section
108(f)(1) notice, because these materials are distributed most often
through digital media

Limit access to the appropriate groups, such as students enrolled in a class
and administrative staff, as needed

Terminate access
at the end of the class term when appropriate

Digitizing and providing access to images and
audiovisual resources for educational purposes

If the use of the resources is transformative and the amount used is
appropriate for the transformative purpose, digitize them and make them
available as needed, in accordance with the limitations below. In some cases
where a use is transformative and the institution's materials are unique, fair
use will support digitizing them and providing public access. But in
other cases, digitized materials should be made available in accordance with the
limitations below.

If the use is not transformative, for example, in the case of analog slide
sets produced and marketed for an educstional audience, assess the scope and
relevance of licensed digital resources available to meet educator's needs.

If your needs and the content of licensed
digital resources significantly overlap:
Acquire licenses to use the
commercially availalble digital collections and
digitize institutional
holdings in accordance with the limitations below.

If there is little overlap in your needs and readily available digital
collections, for example,
if your materials are no longer available or are
rare: Digitize and use institutional works in accordance with the following
limitations:

Limit access to all images, audio and audiovusual resources, except low
resolution small images or short clips, to appropriate audiences such as
students enrolled in a class and administrative staff as needed. Terminate access at
the end of the class term when appropriate.

Faculty members also may use these works at peer conferences.

Students may download, print when needed and transmit digitized works for
personal study and for use in the preparation of academic course assignments and
other requirements for degrees, may publicly display images and perform audio
and audiovisual works in works prepared for course assignments etc., and may
keep works containing them in their portfolios.

Digitizing and using other's works creatively

Students, faculty and staff who wish to use others' works in creative,
transformative ways, may incorporate others' works into their own original
creations and display and perform the resulting work in connection with or
creation of --

class assignments

curriculum materials

remote instruction

examinations

student portfolios

professional symposia

While creative uses tend to be transformative, we still must be careful to
use no more than needed to achieve the transformative purpose
Limit copies
and distribution

Research copies

Making copies as part of the research process may or may not be
transformative.

Limit research copies to

single chapters from works of 10 or more total chapters, or 10% of shorter
works (works having 9 or fewer chapters total, or works that are not divided
into chapters)

single articles from a journal issue

several charts, graphs, illustrations

other similarly small parts of a work (10%)

Using the four factor fair use test

If the quick guides above are insufficient
for your needs, and there is no Best Practices statement that
you feel you can reasonably adapt to your situation, you can try your hand at
using the fair use test directly.

With a particular use in mind,

Read about each factor

Answer each factor's question about your use

See how the balance tips with each answer

Make a judgment about the final balance: overall does the balance tip in
favor of fair use or in favor of getting permission?

The four fair use factors:

What is the character of the use?

What is the nature of the work to be used?

How much of the work will you use?

What effect would this use have on the market for the original or for
permissions
if the use were widespread?

FACTOR 1: What is the character of the use?

Criticism

Commentary

Newsreporting

Parody

Repurposing a work, providing a new context, or otherwise adding
value
to the work

Nonprofit

Educational

Personal

Commercial

Uses on the left are examples of
transformative purposes that tip the balance in favor of fair use. The use on
the right tends to tip the balance in favor of the copyright owner - in favor of
seeking permission. The uses in the middle support a determination of fair use,
even if there is no transformative purpose. They also add weight to a
transformative fair use claim. But even commercial uses can be fair when they
involve repurposing of content, or adding value to it, such as but not limited
to parody, criticism and commentary.

The uses on the left are strongly
transformative when they use a work in a new way and serve a new market
from the one the original was intended to serve. For example, using a small
image of a poster to illustrate a timeline is transformative; creating a parody
of a song is transformative; scholarly criticism that quotes to illustrate a
point is transformative; a model's glossy photo used in a news report is
transformative. All of these are examples of cases where commercial uses
of an appropriate amount of another's work were found to be fair uses.

FACTOR 2: What is the nature of the work to be used?

Fact

Published

A mixture of factual and imaginative

Imaginative

Unpublished

Again, uses on the left tip the balance in
favor of fair use. Uses on the right tip the balance in favor of seeking
permission. But here, uses described in the middle tend to have little effect on
the balance, more or less cancelling out this factor entirely.

Which way is your balance tipping after assessing the first two
factors?

FACTOR 3: How much of the work will you use?

Small amount (ex: 1 chapter; 10%)

An appropriate amount for a transformative purpose

More than a small amount or the amount needed to accomplish a
transformative purpose

This factor has its own peculiarities. The
general rule holds true (uses on the left tip the balance in favor of fair use;
uses on the right tip the balance in favor of asking for permission), but if
you conclude under the first factor that your purpose is transformative, you can
use an amount of the work that is appropriate to accomplish that purpose.
Notice how nuanced the interaction of these factors can be: A nonprofit
transformative use of a whole work might weigh in favor of fair use if the
amount is appropriate for the purpose. A commercial use of a whole work would
normally weigh significantly against fair use, unless the whole work were
the appropriate amount to accomplish that purpose. The examples provided
under factor one above illustrate this.

Typically, a nonprofit educational
institution may copy an entire article from a journal for students in a class as
a fair use; but a commercial copyshop would need permission for the same
copying. Similarly, commercial publishers normally have stringent limitations on
the length of quotations, while a student writing a paper for a class assignment
could reasonably expect to include lengthier quotes.

Which way does your balance tip after
assessing the first three factors? The answer to this question may be important
in the analysis of the fourth factor!

FACTOR 4: If this kind of use were widespread, what effect
would it have
on the market for the original or for permissions?

Proposed use is transformative and not merely duplicative (first
factor) and amount used is appropriate for the transformative purpose
(third factor)

Proposed use is not transformative, but amount is small (10%/1
chapter)

Original is out of print or otherwise unavailable

Copyright owner is unidentifiable

No license of the type you want

Password protection; technological protection

Use is not transformative

Competes with (takes away
sales from) the original

Avoids payment for permission
(royalties) in an
established
market for licenses of the type
that you
desire

The first three factors affect the analysis
of this factor. In most cases, three things come together here: whether your use
is transformative; whether the amount you used is appropriate for the
transformative purpose; and whether there is an efficient and effective market
offering a license to use the work in the way you want to use it.

As always, uses on the left weigh in favor
of fair use; those on the right weigh in favor of getting permisison. In the
middle, uses will reduce the risk associated with relying on fair use when there
is a market for that work by protecting the work from possible negative effects
of exposure.

In the last 15 years we have seen that
courts will tend not to take the availability of licenses into account if the
proposed use is transformative and uses an appropriate amount. But if the use is
not transformative, the market matters a lot. In a case (Georgia State) that
applied fair use to creating digital copies for use as online course materials
in a nonprofit educational setting, digitizing and distributing others' works
for a similar purpose and for a similar audience to those the original author
and publisher intended was only fair when either 1) the amount used was limited
to 10% of shorter works (9 or fewer chapters, total, and works not divided into
chapters) or 1 chapter from longer works (those containing 10 or more chapters)
or 2) there was no license available for the type of use desired. If a license
was available, the amounts had to be kept within the limits described, in nearly
every case. Please see Georgia State
Electronic Course Materials Case for more detailed discussion.

In summary, transformative uses of
appropriate amounts tend to be fair even if there is a license available.
Non-transformative uses of materials for which there is a license of the type
you need, readily available, require that you use only small parts (the 10%/1
chapter amounts the Georgia State Court utilized), and employ protections
described in the center of the paradigm above to reduce the risk of harm to the
copyright owner.

How do you feel about the balance for your
use after consideration of all four factors?

Need another
source of authority to use a work?

Getting rights to use a work is becoming
easier in many cases. For pointers to collective rights agencies, information
about transactional and subscription licenses, and important considerations in
the process of obtaining permissions, please see, Getting Permission. If
you have a choice about what materials you use for a particular purpose,
consider also that you can eliminate the need for item-by-item- permission to
use others' works if you choose works that are already licensed for the use you
plan to make. For example, there may be appropriate materials for your purposes
already licensed by your library; appropriate materials may be available with
Creative Commons licenses that allow nonprofit educational uses without
permission; or materials may be freely available online that carry implied
rights to make uses as you plan. Information about these choices is available in
Accessing and
using library resources, at the Creative Commons, and in Content on the Web and
Managing your
copyrights.

More information

If you are associated with the University of
Texas System as faculty, staff or student and have questions about the
application of the four factor fair use test, please let me know.

Need more information? The Copyright Crash Course
contains detailed materials on many other copyright issues.

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Crash Course © 2001, 2012 Georgia K. Harper