Fair use is a set of broad criteria identified in Section 107 of the Copyright Act of 1976 that allows individuals to use limited portions of a work for teaching, scholarly research, and news reporting without first having to obtain permission from the work’s copyright holder.
Ideally all four factors should be considered though all factors do not have to be in favor of use to make it a fair use.
The four factors are:
If the purpose of the use is non-profit and/or educational in nature, the use is more likely to be protected under the doctrine of fair use than if the intention is to use the material in a for-profit manner.
Fair use favors works considered factual in nature (i.e. created for the purpose of criticism, commentary, teaching, or scholarship) over works that are original fictional or artistic expressions.
As a rule the smaller the amount of the work you use the more protected you are. For example, using ten pages of a 300-page book is more likely to be considered fair use than using ten pages of a 60-page book.
Regarding substantiality, even using a very limited portion of a work may not be allowed if that portion is what is referred to as the ‘heart of a work.’ In a fictional work, this might be a key or climactic plot scene; in a non-fictional work it may be a few pages that summarize the argument of the entire text, for example.
Copyright law grants an author the right to realize financial gain from the creation and sale of his work. If usage of the material negatively impacts the author’s ability to realize revenue, it will not be protected under the doctrine of fair use.
Fair use is open to interpretation and dependent upon the individual circumstances, and the individual seeking to use a copyrighted work must weigh all four factors and arrive at the conclusion that his usage is a reasonable and fair usage of the material before proceeding.
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The difference between “fair use” and a copyright “infringement” is not always easy to determine. Claiming fair use requires a very circumstance-specific analysis of the intended use of a work, based on the four factors. Here are three examples that illustrate this challenge:
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Weight of Evidence Favors Fair Use |
Gray Area – Opinions May Vary |
Weight of Evidence Does Not Favor Fair Use |
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Scanning one chapter of a 10 chapter book and posting it to ECN |
Scanning 3 or more chapters of a 10 chapter book and posting it to ECN |
Scanning an entire book and posting it to ECN |
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If the scanned pages are not the “core” of the work, then the evidence favors fair use. |
The amount exceeds established standards of 10% of the book |
Scanning an entire book clearly weighs against all four factors found in the Fair Use Provision. |