Fair Use (§107 of the Copyright Act): Basics
The 4 Fair Use factors*
§ 107 . Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, 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, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
THE PURPOSE AND CHARACTER OF THE USE
The Fair Use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. The following purposes favor Fair Use
Opposing Fair Use - Purpose:
THE NATURE OF THE COPYRIGHTED WORK (aka, "Can I show a movie in my class?")
Regarding Fair Use, the sciences are less complicated than the Arts. Factual works (scholarly, technical, scientific) are generally favored for Fair Use over creative works such as plays, poems, fiction, photographs, motion pictures. That being said, Fair Use allows screening an entire movie in the classroom or instructional auditorium, correlated with instructional activity, but transmitting an entire film over a computer network has more restrictions due to the fact that it could potentially be seen by non-students or copied from a network (See the TEACH page).
Favoring Fair Use for the Nature of the work:
Opposing Fair Use for nature or:
Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a Fair Use--so ask your library to purchase it! It comes with public performance rights.
THE AMOUNT OR SUBSTANTIALITY OF THE PORTION USED
Amount is on a sliding scale, generally the more you use, the less likely you are within Fair Use. Yes, this does seem in direct contradiction to statements found in Nature, but such is the reality of copyright and Fair Use. The most common answer to Fair Use questions is, "it all depends"--even from lawyers and other experts.
Favoring Fair Use - Amount/Substantiality:
Opposing Fair Use - Amount/Substantiality:
Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work:”
Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
THE EFFECT OF THE USE ON THE POTENTIAL MARKET FOR OR VALUE OF THE WORK
Can you easily purchase the copies that you need? Are you using an entire journal issue, a large portion of the book, most of the illustrations from an article or book? The greater the amount used, the less likely it is to be considered Fair Use.
Favoring Fair Use - Effect:
Opposing Fair Use - Effect:
Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.
Effect is also closely linked to Purpose.