Fair Use

Section 107 in Title 17 of the United States Code states that the following uses are not infringement of copyright:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section [106], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

What does Fair Use mean?

The Fair Use exemption is intended to allow limited use of copyright material, without seeking permission, for the purposes outlined above. Fair Use is the broadest – and most intentionally vague – of the copyright exemptions: what may qualify as fair use of copyrighted material in one situation may not qualify in another situation. The only requirement is that the person using the copyrighted material make a reasonable determination as to whether or not his her use qualifies as “fair” or not.

When making a Fair Use determination, the law requires that four factors be taken into consideration. Each of these factors should be given equal weight:

  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 [both quantitatively and qualitatively] 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(The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.)

How can I tell if something is fair use?

To aid in making a Fair Use determination, please use the Fair Use Checklist (pdf). If the majority of items on the checklist are in favor of Fair Use, the use is probably fair.

The following general guidelines should be used in all Fair Use determinations:

  • Use should be for criticism, news reporting, teaching or scholarship and research (not for commercial purposes).
  • Use should be clearly related to a class learning objective, and only as much should be used as is needed to meet that objective.
  • Use must include a copyright notice (stating who owns the copyright). Images should have the copyright notice visible on the image itself (rather than in a prologue or credits section of a presentation).
  • The copy must be made from a legally acquired source (not a pirated source).
  • Never copy the works of current Pacific University faculty, staff or students (including your own students) in public online areas without permission.
  • Never use Fair Use to avoid paying for or licensing a product containing the media in question, especially digital media created (and marketed for) educational purposes.
  • Fair Use does not apply to consumable works; for example, workbooks, standardized tests or quizzes, survey instruments, etc.
  • Any material given to students that contains material copied via fair use should contain the following disclaimer:

The following contains copyrighted material that has been copied under fair use provisions. Any further copying or use may not qualify as fair use and may be a violation of copyright law resulting in criminal or civil penalties.

Are there any more specific guidelines?

The “four factor” test for Fair Use is intentionally vague to allow for a wide variety of possibly acceptable uses. However, a variety of guidelines – created by Congress and by joint academic and commercial bodies – offer some tangible, and commonly accepted, guidance in regard to how much of a work may be used, how it may be used, and for how long it may be used.

These guidelines are not law; they are considered “safe harbor” guidelines – staying within their bounds is the closest thing to an entirely defensible use. As “safe harbor” guidelines, they are very conservative, and it is likely that many uses which fall outside of their limits may still be considered Fair Use.

To view these guidelines as they apply to a variety of academic uses, visit the Copyright Usage Guidelines section of this site.

Guidelines:

Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals , March 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sesss. [1976]. H. Doc. 1476: 68-70.)

Guidelines for Educational Uses of Music , April 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sesss. [1976]. H. Doc. 1476: 70-71.)

Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes , October 1981. (U.S. Congress. Congressional Record, vol 127, no. 18, pp. 24,048-49 [1981]. Reprinted soon after at U.S. Congress. House. Report on Piracy and Counterfeiting Amendments, 97th Cong., 1st sess. [1982]. H. Doc. 495: 8-9.)

Proposal for Educational Fair Use Guidelines for Digital Images , Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, 33-41.)

Proposal for Educational Fair Use Guidelines for Distance Learning , Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, 43-48.)

Proposal for Educational Fair Use Guidelines for Educational Multimedia , Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, 49-59.)

What if I’m still not sure if my use is fair use?

The law requires that you make a reasonable determination that your use is fair. If you feel that you are not able to make a reasonable argument for your proposed use, it may be best to seek permission from the copyright holder.

If you have questions about making a Fair Use determination, please contact the Pacific University Copyright Help Desk or visit these sites: