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Copyright: Fair Use

What is Fair Use?

Fair use (U.S.C. Title 17 § 107) is a legal limitation on the exclusive rights of copyright owners. Use of copyrighted works without the copyright owner’s permission for the purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not copyright infringement.

The Fair Use Policy of Carnegie Mellon University requires members of the University community to comply with U.S. Copyright Law. When a proposed use of copyright material does not fall within the fair use doctrine and is not otherwise permitted by license or exception, written permission from the copyright owner is required to use the work.

While courts are the final arbiter of whether a particular use of a copyrighted work is a fair use, Carnegie Mellon expects members of the University community to conduct a fair use analysis prior to exercising their fair use right. If, after conducting a fair use analysis, you determine your proposed use qualifies as a fair use, you may use the work. You should document your fair use analysis for future reference, as a sign of your good-faith effort to ascertain whether the use is a fair use. If, however, you determine your proposed use does not qualify as a fair use, you must either seek the copyright owner’s written permission to use the work or find an alternative work to use that is allowed by license or no longer protected by copyright.

Four Factors of Fair Use

Copyright law provides four factors that are used when determining if a use is fair. 

1. Purpose and Character

  • What do I you want to do with the materials I plan to copy?
  • Is it for commercial or educational purposes?

 

2. Nature of the Work

  • Is the work I'm copying Fact or Fiction?
  • Has this work been published or not?

 

3. Amount and Substantiality

  • How much of the work do I need to borrow?
  • Is what I'm copying the heart of the original work?

 

4. Effect of Use and Value

  • How will my new work effect the copyright work?
  • Will copying the work mean that the copyright holder will earn less money?

 

The most important factor is the purpose, and if the use is transformative. 

Does Fair Use Apply?

Conducting a fair use analysis entails consideration of:

The four fair use factors and their interpretation in relevant case law – see the Appendix to the Fair Use Policy of Carnegie Mellon University.

Applicable codes of best practices.

The Supreme Court has recognized that “the fair use defense affords considerable latitude for scholarship and comment,” but several caveats apply in practice:

  • Regardless of whether a particular use qualifies as a fair use, with rare exception publishers require the copyright owner’s written permission for any third-party material included in a work to be published.
  • Fair use likely provides sufficient protection for students including third-party materials in classroom presentations or submitted assignments, but the copyright owner’s written permission might be required for broader dissemination, for example, for posting the work on a website or depositing it in an open access repository, such as Carnegie Mellon’s KiltHub.

Best Practices

Various communities have developed a code or statement of best practices to assist their constituencies in exercising their fair use rights. Courts often consider community practices in lawsuits involving fair use claims, but faculty and students should not confuse best practices with copyright law. The Law of Fair Use requires the consideration and balancing of the four fair use factors as they apply to the specific circumstances of each proposed use. See the Appendix to the Fair Use Policy of Carnegie Mellon University for guidance.

Displays, Performances, and Classroom Use

Public Displays/Performances
A public display or performance is one that either occurs in a public place where people gather or is transmitted to the public, for example, via the Internet.

 

In the Classroom
U.S. copyright law allows faculty and students to perform or display all types of work in the classroom, e.g., to recite poetry, read plays, show videos, play music, and project slides. It does not allow making copies or posting digital works on servers. See U.S.C. Title 17, §110(1).

 

Distance Education
Under the Technology, Education and Copyright Harmonization Act (a.k.a., the TEACH Act), it is not copyright infringement for teachers and students at an accredited, nonprofit educational institution to transmit performances and displays of copyrighted works as part of a course if certain conditions are met. If these conditions are not or cannot be met, use of the material will have to qualify as a fair use or permission from the copyright owner must be obtained. See U.S.C. Title 17, §110(2).

TEACH Act Toolkit
by Peggy E. Hoon, North Carolina State University.  Navigate the Toolkit using the options in the sidebar on the left.

TEACH Act Flow Chart
Scholarly Communications @ Duke.

Fair Use Tools and Resources

Fair Use Evaluator
Tool by Michael Brewer, American Library Association Office for Information Technology Policy.

Fair Use Fundamentals Infographic
Created for Fair Use Week 2015. Explains what fair use is, why its important, and how it can be used. 

Fair Use/Fair Dealing Week
An annual week-long celebration of the importance of fair use in the United States and fair dealings in Canada. 

Summaries of Fair Use Cases (1984 - present)
A list of summaries of fair use court cases maintained by the Stanford University Libraries. 

Understanding the Four Factors of Fair Use
Information and Resources on the Four Factors of Fair Use provided by the University Copyright Office, Purdue University.