What is Fair Use?

Exercised properly, Fair Use allows educators the right to make reasonable and limited use of copyrighted works in the classroom. See USC 17 §107. To determine whether a use is fair, or infringing, one must walk through the Four-Factor Test and the Guidelines for Classroom Copying.

A common misunderstanding is that Fair Use applies in the non-profit educational setting all the time. This is not true. Additionally, the acceptance of “one time educational use” as being fair use is not a safe practice. One must walk though the Four-Factor Test to determine if a use is fair.

It’s possible that activities which would be considered copyright infringement for the general public might be fair use in the traditional non-profit face-to-face classroom. However, in today’s information rich electronic environment, fewer and fewer educational uses are considered fair. Think of it this way, putting a hardcopy journal article on library reserve (stamped: Do Not Reproduce) for a class, makes that one copy available for only those persons in the class, or for those people who use the library—this dissemination is very limited.

Now think of what can happen when an electronic article is posted to a course management system and students are allowed to download it. If securities to disallow saving, printing, forwarding etc. aren’t set properly, the article can travel around the world in a matter of minutes.

Educators must take even more precaution today when using copyrighted works in both the face-to-face and online classroom. Markets have been established for scholarship in all formats. This includes viable markets for single journal articles. Even though affordable permissions don’t always exist, the mechanisms are in place to seek permission with relative ease, (see any publisher’s website). Educators are expected to use the mechanisms available (the Web, email, the Copyright Clearance Center etc.) to seek permission.

Always err on the side of caution and make a “good faith effort” to seek permission. When there is any doubt about whether or not a use is considered fair—for example, after a failed attempt to contact an author or publisher—it’s best to find new material or reference the work in a non-infringing manner, see Guidelines for Classroom Copying.

“Whether or not you are within the boundaries of fair use will depend on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university? To determine whether you are within fair use, the law calls for a balanced application of these four factors.” – Dr. Ken Crews

The Four-Factor Test is an approved method for deciding on a case-by-case basis, whether or not one can use a copyrighted work. If at any point the infringer exercised “bad faith” by not seeking permission, or using what s/he knew was an unlawfully made copy, this weighs heavily against fair use. Access the online Fair Use Checklist courtesy of Columbia University [PDF].

The Four-Factor Test covers the following four areas:

  1. PURPOSE – Non-profit, educational, teaching usually favors Fair Use

  2. NATURE – Published, factual, non-fiction works favor Fair Use

  3. AMOUNT – Small portions that are not central to a work favor Fair Use

  4. MARKET EFFECT – Owning a lawfully acquired copy, making 1 or few copies, favors Fair Use.