What is Fair Use?
Fair Use is a doctrine of U.S. copyright law. Court cases in the past had conceded the need for those creating new works to be able to access old works and recognized that sometimes such access resulted in the infringement of copyright laws. These cases agreed that this type of infringement was ultimately for the good of the country. Finally, in 1976, this opinion was set down in the Copyright Act as 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use. Fair Use Doctrine states that using another's work is not an infringement of owners' rights if the purposes are for such things as, "criticism, comment, news reporting, teaching..., scholarship, or research". All of which help to support the "Progress of Science and useful Arts"
Fair Use Factors
There are 4 statutory "factors" that the law considers in determining whether a use is fair. It is by weighing each of these factors independently and then analyzing the results as a whole that you determine whether your use is "fair". This determination is never clear cut (unless you are sued and the courts tell you). So part of Fair Use analysis is also risk assessment. However, keep in mind that the courts do take into consideration your efforts to stay within copyright. Thus documenting your Fair Use analysis is always a good idea.

Factor 1: Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Factor 2: Nature of the copyrighted work
Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole
Factor 4: Effect of the use upon the potential market for or value of the copyrighted work

 
Subject Specialist
Picture: Karen Kunz

Karen Kunz
Librarian (Engineering, Copyright, Grants)
Tel: 541-885-1769

Crash Course Intellectual Property #3: 5:30 minutes in
Follow the Four Factore of Fair Use
Purpose and Character
For Fair Use:
  • Transformative (e.g. adding new expression or new meaning or new value)
  • Scholarship, research or education
  • Teaching or nonprofit educational institution
    • Restricted access
  • Criticism, comment, parody, news reporting
Against Fair Use:
  • Non-transformative -- virtually verbatim
  • Commerical / Profiting from use
  • Entertainment
  • Denying credit to creator
Nature of the work
For Fair Use:
  • Factual or nonfiction works
  • Published works
  • Important to educational objectives


Against Fair Use:
  • Fictional or highly creative works
  • Unpublished works
Amount and substantiality
For Fair Use:
  • Use of a small quantity of the work
  • Content is not considered "heart" of work.
    • "Heart of the work" is the portion that defines the work. For example, the biggest surprise in a tell-all biography or the most recognized part of a music piece.
    • An exception would be in parody cases -- as that tends to be the target of the parody

Against Fair Use:
  • Use of a large amount in relationship to the work as a whole
  • Portion used is central to (heart of) the work
Effect on the market
For Fair Use:
  • Use would not hurt current market for work
  • Purchasing or acquiring copy
  • Minimal copies made
  • Lack of a licensing mechanism
Against Fair Use:
  • Use would deprive copyright owner of income
    • e.g. Can't copy to get out of paying for book
  • Available licensing mechanism
  • Affordable permission available
  • Numerous copies made
    • e.g. Publishing to web
  • Repeated long-term use
Resources
https://www.copyright.gov/fair-use/more-info.html
http://cmsimpact.org/codes-of-best-practices/
https://www.copyright.gov/fair-use/fair-index.html
https://www.lib.umn.edu/copyright/fairuse
http://guides.lib.utexas.edu/copyright/fairuse


YouTube search on fair use
 
Orphan Works
"Cases brought in recent years have generally favored library and archives uses, though several of those decisions are currently being appealed. Few fair use cases specifically involve libraries, archives, or other memory institutions. In general, however, case law since the early 1990s generally favors conscientious fair users. They have held that for a use to be considered “transformative,” it need not be one that modifies or literally revises copyrighted material: uses that repurpose or recontextualize copyrighted content in order to present it to a new audience for a new purpose can qualify as well. Courts have found that full-text copying facilitates information discovery."

Statement of best practices in fair use of collecitons containing orphan works for libraries, archives, and other memory institutions
Last updated 5/21/2018