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Copyright Information and Guidelines: Fair Use

This guide for the Bentley University community presents information on copyright and provides guidance in evaluating the use of copyrighted material in higher education and scholarship.

What is Fair Use?

Fair use is all about balance. Balancing the needs of educators and students to use copyrighted material in scholarly pursuits with the needs of authors and rightholders to retain control of the content they create.

Section 107 of the U.S. Copyright Act of 1976, and the more recent Digital Millennium Copyright Act of 1998 (DMCA), both attempt to address the needs of scholars without infringing unduly on the rights of copyright holders by introducing a set of Fair Use guidelines. These are not explicit rules, but rather a collection of guiding principles designed to assist in making informed decisions regarding the lawful and responsible use of protected material.

The doctrine of fair use is intentionally ambiguous. It was crafted in such a way to provide flexibility to those who employ its principles. Thus, the distinction between fair use and infringement can often be difficult to establish. There is no definitive amount of words, lines, or notes that may be used without permission, and merely ackowledging the source of original material is not a substitute for obtaining the proper permissions.  

Copyright law protects the particular expression of an idea but not the idea itself, or any systems or factual information conveyed in a particular work.

The safest course is to always secure permission from the copyright owner before using copyrighted material. When it is impractical to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation.

Sources: U.S. Copyright Office, Bentley University Copyright Policy (2000)

The Four Factors of Fair Use

Fair use is intended to allow certain uses of copyright-protected material without obtaining permission from the copyright holder under specified conditions detailed in the four factors of fair use. These factors should all be considered when evaluating each use of a copyrighted work. Fair use is not a means through which to circumvent copyright law, but a legal assertion of use which will need to be justified through the careful application of these conditions.

Remember P.A.N.E. (Purpose, Amount, Nature, Effect):

  1. The purpose and character of the use, including whether the copied material will be for nonprofit, educational or commercial use.

  2. The amount, substantiality, or portion used of the copyrighted item in relation to the work as a whole. This factor requires consideration of both the proportion of the larger work, and the significance of the copied portion.

  3. The nature of the copyrighted work, whether it is of educational/informational, or recreational/creative use. A newspaper article would be considered more informational, while a short story would be considered more creative.

  4. The effect on the potential market of the use of a copy of a copyrighted work. This factor is the most critical one in determining fair use. If the reproduction of a copyrighted work reduces the potential market and sales and therefore reduces the profits to the copyright holder, that use is unlikely to be found a fair use.

Image Source: Russell, C. (2004). Complete copyright. ALA. p. 22. Used with permission.

Factor 1: Purpose
 
Consider how and why you are using the work. Educational purposes such as criticism, commentary, research, and scholarship are generally favored over commercial use or merely a reproduction of the original. Courts also favor use that is transformative, meaning that it adds new character or value to the work by using it to frame a larger academic discussion or research paper.
 

Favoring Fair Use

Opposing Fair Use

Teaching/research/scholarship          Commercial activity
Criticism/commentary Profiting from use
Parody Entertainment
News reporting Denying credit to original author
Transformative use
 

Factor 2: Amount

Note how much of the work you are using. Although the law does not offer an exact permissible amount, generally, the less you use, the more likely it would favor fair use. The amount or portion used is measured against the entire work in which it appears. In most cases, one chapter from a book or one article from a journal issue would be permissible. There may be occasions, however, when this amount is considered the “heart of the work” and would require further analysis.

Favoring Fair Use

Opposing Fair Use

Small extract, excerpt, or clip Large portion
Portion used not central to work Entire work
Amount appropriate for educational use            Portion used is "heart of the work"

 


 
Factor 3: Nature
 

Examine the type of work being used. Generally, works that have been published and are factual or scientific in nature are favored over creative, imaginative, artistic, or unpublished works. Certain “consumable” materials that are meant for one-time use such as workbooks or quizzes are not typically considered for fair use. Additionally, the more educational the use, the more favorable the consideration for fair use, including creative works.

Favoring Fair Use
 
Opposing Fair Use
Published work Unpublished work
Fact-based or non-fiction work            Creative works (art, music, film, etc.)
            Practice tests, workbooks, etc.

 


Factor 4: Effect

Determine how the use of a copyrighted work would affect the market for that particular work and how such use would cause economic harm to the copyright holder. Courts typically do not favor fair use if appropriate licensing or permissions are available for purchase for the work in question. However, if the first three factors favor fair use, particularly for educational purposes, such use would not be considered as detrimental to the market for the work. Conversely, if the first three factors indicate use that does not favor fair use, especially use for commercial benefit, then the market effect would be viewed negatively.

Favoring Fair Use

Opposing Fair Use

One or few copies made          Multiple copies, not for educational use
Use favors market for original work Impairs market for original work
No impact on market for original work         Repeated, long-term use
No liscensing mechanism available Liscensing mechanism available
Original work lawfully acquired


 

Disclaimer

Please note that the above information is for reference purposes only and should not be construed as legal advice. It is advisable to always conduct a Fair Use Analysis whenever there is a question regarding the lawful use of copyrighted material. If, after careful evaluation, it is determined that the use of particular material would violate copyright law, or if you need to purchase copyright permissions for such use, please contact Matthew Van Sleet at 781.891.2311 or mvansleet@bentley.edu.

More on Fair Use

 

Fair Use Tools

Fair Use Resources