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Copyright and Fair Use 2023

What is Fair Use?

Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107)

The “fair use” of a copyrighted work, codified at 17 U.S.C. § 107, is not infringement. Fair use includes uses “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

The determination whether a particular use of a copyright is fair is often fact-intensive, and will typically depend on the specifics of how and why the copyrighted work is used. Under current law, an accused infringer bears the burden of establishing fair use. Thus, the success of a fair use defense to a copyright infringement lawsuit can be an uncertain prospect for an accused infringer. On the other hand, fair use is a highly flexible doctrine that has been extended to uses that the 1976 Act’s drafters may not have anticipated, such as mass digitization of books for search purposes.

What Determines Fair Use?

There are four non-exclusive factors to evaluate in determining if a use is "FAIR" and thus exempt from copyright restrictions.

  1. The purpose of the use (eg. educational vs. commercial)*
  2. The nature of the copyrighted work (creative is less likely to be creative than "factual" work)
  3. The amount of the material used (the greater the amount copied, the less likely it is fair use - so using less is best)
  4. The effect of use on the potential market for or value of the work (e.g. posting a text book deprives the publisher of revenue)

* Not all uses in an academic context are automatically considered fair use! Fair Use Evaluator

Tools to help you Determine Fair Use

  • Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.
     
  • Fair Use Checklist: Organized based on the four requirements for Fair Use, this resource describes actions or scenario that faculty and students may experience when confronting copyright issues.  A checklist next to each scenario determines the degree to which fair use may be applied.  Developed by Kenneth Crews, Columbia University's Copyright Advisory Office.

 

Fair Use in Academia

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. The complexity of fair use and its importance in academia make it imperative that every member of Seton Hall University understands how to make judgements concerning fair use.