Fair Use

The Fair Use doctrine is often evoked whenever someone wants to use a copyright-protected work in an educational setting without the formal permission of the copyright owner. However, determining fair use is not so cut-and-dry: Section 107 of the copyright law lays out four factors that must be weighed in determining whether a particular use of copyrighted material is "fair."

Any determination of Fair Use must take all FOUR factors into consideration.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.

   - Non-profit educational use is the easiest to be covered under fair use; most universities and non-profit educational institutions can easily claim fair use for this reason.

2. The nature of the copyrighted work.

   - Factual or scientific materials tend to fit under fair use better than creative works such as fiction, poetry, plays, etc. - again the materials used in the health sciences environment tend to meet this criteria well.

Unfortunately after these two criteria, the guidelines become less clear:

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

   - How much of a work are you using? Are you using an entire journal issue, a large portion of the book, most of the illustrations from an article or book? The greater the amount used, the less likely it is to be fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work.

   - Can you easily purchase the copies that you need? Is this a consumable item such as a study guide that should not be reproduced? Are you repeatedly using something under fair use when you should be paying royalties?

Adapted from FL-102, June 1999, available online at http://www.copyright.gov/fls/fl102.html

Fair Use in Photocopying

Fair use photocopying for educational purposes is influenced by two additional issues:

• Spontaneity, or how many times you use the work, and,
• Brevity, or how much of the work you use.

For example, photocopying a short article that appears in a morning newspaper for that day's afternoon class generally is considered covered under fair use because of the spontaneous nature of the use; however, if you use the same photocopy of the article every semester, you must seek formal permission to use the article each semester.

Similarly, brevity influences whether a particular photocopy is considered a fair use: photocopying a smaller portion of a work (a paragraph or two) is more likely to fall under fair use than copying an entire chapter. But keep in mind that there are no hard and fast rules about how much of a work can be photocopied.