Copyright Fair Use

"The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."

-- Justice Sandra Day O'Connor (Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 349(1991)

"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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Among the provisions of the 1998 DMCA was a provision (Ñ 1201) that took effect October 28, 2000. It prohibits acts circumventing technological measures designed to limit access to or use of copyrighted works, encryption, etc. Due to concerns about the impact of the provision on fair use and access to the unprotected material in copyrighted works, the Act provided for the U.S. Copyright Office to study the matter and issue such exemptions as were needed during the first three years of the provision's operation. Though university and library groups urged significant exemptions, the rule essentially grants none.

The Copyright Crash Course will help you learn about how ownership of copyrighted materials works, what is fair use and when and how to get permission to use someone else's materials.

The Checklist for Fair Use is a helpful tool for the academic community. It helps focus on factual circumstances that are important to the evaluation of a contemplated fair use of copyrighted works. A reasonable fair-use analysis is based on four factors set forth in the fair-use provision of copyright law: Section 107 of the Copyright Act of 1976. The "checklist for fair use" derives from those four factors and from the judicial decisions interpreting copyright law.

Fair Use is determined by analyzing the following four factors:

• purpose and character of the use
• nature of the copyrighted work
• amount and substantiality of the portion used
• effect of the use upon the potential market

Fair Use in the Electronic Age: Serving the Public Interest, (ARL Working Document), May 1998

Reproduction of Copyrighted Works by Educators and Librarians, Circular 21, Copyright Office, Library of Congress, September 1995

When Works Pass into the Public Domain, Gassaway, Laura, University of North Carolina-Chapel Hill, October 9, 1999