Fair Use - Section 107

Fair Use

The fair use exception exists to achieve a balance between copyright owners and the general public who may benefit from using copyrighted works without seeking permission.  A fair use is any copying of copyrighted material done for a limited and "transformative" purpose, such as to comment upon, criticize, or parody a copyrighted work. The Fair Use doctrine recognizes the need to permit reasonable public access to copyrighted works in order to support the advancement of knowledge. The uses should repurpose and recontextualize the original or be accompanied with commentary - scholarly, educational, historical, and/or critical.  Uses should be brief and noncommercial and proper credit and notice should always be given.

The Law of Fair Use

U.S. Copyright Act, 17 U.S.C. ¤ 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 in 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.
  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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (17 U.S.C. ¤ 107)

Fair use is based on weighing these four factors:

1) Purpose and Character of the Use

  • Is the use for a commercial or noncommercial purpose?
  • What is the target audience?
  • If the purpose is educational is the copied work to be accompanied by original commentary?
  • Does the use of the work "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original?

2) Nature of the Copyrighted Work

  • Is the copyrighted work informational or creative?
  • Is the copyrighted work educational or entertainment?
  • Is the copyrighted work published or unpublished?

3) Amount and Substantiality of the Portion Used

  • Did you use only the amount you needed to accomplish your purpose?
  • Is the copied amount the "heart of the work"?
  • Is the copied amount a substantial percentage of the whole work?

4) Effect Upon the Potential Market or Value of the Copyrighted Work

  • Will the copying interfere with marketability of the original work?
  • Are permissions available to purchase at a reasonable price?
  • Is the use a "substitute" for purchasing the work?

Weighing and Balancing the Factors

A central principle of the fair use analysis is the flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the purposed use will not fit the fair use exception and may require permission from the copyright owner.

Tools for conducting a Fair Use Analysis

Do an analysis each time you want to determine if your use of a work is a fair use. Contact the University Intellectual Property Rights Specialist if you have any questions regarding the overall analysis and use of the checklist. Complete a checklist, sign, date, and attach a copy of it to the material analyzed for fair use in order to document that you are acting in good faith.

To do your analysis, print and complete the Checklist for Fair Use (PDF | Word Document - requires document download).

The following tools can also be helpful in determining whether the use of material protected by copyright is a fair use.

BYU Checklist for Fair Use (PDF)
Digital Image Rights Computator (DIRC), Visual Resources Association
Fair Use Evaluator, Michael Brewer, ALA Office of IT Policy

Fair Use and Best Practice Publications

The Association of Research Libraries (ARL) recently released of the Code of Best Practices in Fair Use for Academic and Research Libraries, a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education. It offers 8 principles that provide an outline to some common situations where many in the library community agree fair use can apply. These codes of Best Practice in fair use function as guides to reasoning, not guidelines that dictate, and like the guidelines, do not have the force of law. They merely mark a well-trodden path through the fair use landscape.

From American University Center for Social Media

Documentary Filmmakers Best Practices in Fair Use
Examples of Successful Fair Use in Documentary Film
Code of Best Practices in Fair Use for Media Literacy Education
Fair Use in Media Literacy Education FAQ
Code of Best Practice in Fair Use for Online Video
Code of Best Practices In Fair Use for Poetry
Remix Culture: Fair Us is Your Friend
Code of Best Practices in Fair Use for Scholarly Research in Communication
Best Practices in Fair Use of Dance-related Materials
Fair Use Scenarios
Fair Use and Free Speech
Code of Best Practice in Fair Use for Online Video

Fair Use Language for Course Syllabi
Code of Best Practices in Fair Use for OpenCourseWare

Other Fair Use Resources

Fair Use Sister Casey Hurley, BYU-Idaho Perspectives article
Statement on the Fair Use of Images for Teaching, Research and Study, Visual Resources Association
Fair Use in Education and Research, Copyright Advisory Office, Columbia University
Copyright Crash Course, Fair use of copyrighted materials, Georgia Harper, University of Texas
Educational Fair Use Today, by Jonathan Band, Association of Research Libraries
Copyright and Fair Use, Stanford University Libraries
Fair Use in a Nutshell, CopyLaw.com by Attorney Lloyd J. Jassin
Copyright Basics: Fair Use, Copyright Clearance Center

Fair Use Case Summaries

Court decisions regarding the question of fair use can provide insight in applying Fair Use to specific situations. Although there are not many cases directly related to the university community, the following summaries will offer some helpful understanding.  These case summaries are authored by Dr. Kenneth H. Crews, Copyright Advisory Office,  at Columbia University.

Teaching: Copies for Classroom Instruction
Research: Copies for Study
Research: Quotations or Excerpts in Scholarly Presentation
Publications: Quotations or Excerpts of Text
Publications: Reprinting of Visual Images
Web Sites: Posting for Public Access
Video Production: Excerpts of Sound Recording
Multimedia Development: Manipulation of Photographic Images

Guidelines

During and after enactment of the 1976 U.S. Copyright Act several fair use guidelines emerged. These guidelines were created as "safe harbor" standards by interested stakeholders representing a variety of interests. Related to the Copyright Act of 1976, Congress included in H.R. 94-1476, an initial set of Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. During later years the Conference on Fair Use (CONFU) was established to help resolve copyright issues within emerging technology. CONFU released draft guidelines on distance education, multimedia, images, electronic reserve services in libraries, and interlibrary loan. No consensus agreement has been achieved surrounding CONFU guidelines and they remain in draft.

In referring to the guidelines, it is important to note they are not the law and often express minimum standards for fair use.

While many institutions strictly adhere to the CONFU guidelines, Brigham Young University- Idaho has chosen not to adopt them as official standards for the campus community. They are provided here for reference and information only.

Complete Conference on Fair Use (CONFU) report, United States Patent and Trademark Office
Classroom Guidelines (1976), Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, Published in House Report 94-1476
Statement on the Copyright Law and Fair Use in Music, Music Library Association
Statement on the Digital Transmission of Audio Reserves, Music Library Association
Guidelines for Off-Air Taping for Educational Purposes