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Copyright, Fair Use & Public Domain

What is Fair Use?

Fair use is the concept that people can use copyrighted works under certain qualifying circumstances. (ARL, 2012). Fair use is important because it gives non for profit institutions and circumstances the ability to use valuable work for the greater good and improvement of everyone. Fair use creates an environment where scholars can feel comfortable researching and building upon other scholar’s work. However, the rules of fair use can purposefully vague, making it difficult to interpret which scenarios are protected under the concept and which are not. Since each case is unique, they must be reviewed on an individual basis (ARL, 2012).

Fair Use Definition

The U.S. Copyright office states that fair use is the legal doctrine that "promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances"(U.S. Copyright Office, 2018). Fair use makes it easier for nonprofit and educational organizations to use, contribute, and transform information for the betterment of society.

Fair Use Factors

Fair use is determined on the basis of four factors. These four factors help guide judges in determining whether the principles of fair use and copyright were being upheld in specific cases, but there are no clear cut lines for what determines fair use.

  1. Purpose
    • The courts will look at if the copyrighted material is being used for educational purposes, commercial purposes, if something is being added to the original work, or if the entity using the material is doing so for profit or noncommercial reasons. Courts often look more favorably on fair use for nonprofits and educational uses, but this is not a guarantee.
    • Example: A public school teacher makes copies of a scientific article for his or her class to read and report on.
  2. Amount of work being used
    • Amount of work being used refers to whether the entire copyrighted work or just a small portion is being utilized. Typically, if an excerpt, such as a chapter or article, is all that is being used, the situation is deemed as fair use. However, if the excerpt being used is considered a core facet of the work, the situation may not be covered under fair use.
    • Example: A student scans a copy of a chapter out of a textbook to read at home. The textbook has other key sections and information that haven't been copied, so the ‘heart’ of the work hasn’t been captured and reproduced.
  3. Nature of the copyrighted work
    • The nature of the copyrighted work refers to the intended purpose of the work and if the use honors those intentions. Nonfiction, educational works are intended to inform audiences, so they can often be used under fair use.
    • Example: A school has a movie day and shows a documentary film. The film's intended purpose is to inform people about a certain topic.
  4. Effect on the value of the copyrighted work
    • Effect on the value of the copyrighted work refers to the impact of the market worth of a copyrighted item if it is duplicated or used without license.
    • Example: A person has a collection of old DVDs and saves a copy of them on their computer. The copies are not being sold or given to other people who would have purchased a copy otherwise. The copies are being kept on a personal device for ease of access, therefore it does not impact the market value of the copyrighted work.