The Fair Use Exemption

Many activities of college life may fall under The Fair Use Exemption of the Copyright Act. This exemption states, in part:

"The fair use of a copyrighted work, including such use by reproduction in copies . . . 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-

(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(b) the nature of the copyrighted work;

(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

§107, Copyright Act

How to Apply Fair Use

Fair Use is a balancing test; each situation must be decided by analysis of the four factors. To date, the courts have provided little guidance in the interpretation of Fair Use in college contexts. It is generally understood, however, that no one factor is automatically given more weight than another, and a use that is opposed by some of the factors may still be justified if the other factors favor it.

Congress has stated that "the doctrine [of Fair Use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts."[1] The more clearly each factor favors your intended use, the more confident you may be that the use is fair.

A helpful amplification of the four factors is provided in chapter 8 of this guide, "Checklist for Fair Use." This checklist has no legal standing, however, and does not replace the need for you to apply "an equitable rule of reason" in any given situation. To assist you, sample scenarios have been included in most of the chapters of this guide that address specific situations.

Table of Contents | Chapter 6 | Chapter 8

[1] House Committee on the Judiciary, Report on Copyright Law Revision, 94th Congress, 2d session, 1976, House Report 94-1476, 65. Quoted in United States Copyright Office, Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians." Cp. Kenneth D. Crews, "Rules about word counts and percentages have no place in the law of fair use. At best, they are interpretations intended to streamline fair use." Copyright Essentials for Librarians and Educators, 55.