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Copyright & Fair Use

The Fair Use Exception

The Copyright Act gives the owner of a copyright the exclusive right to reproduce and distribute their work. One exception to this exclusive right is called "fair use." 

Fair use permits the reproduction of a portion of a copyrighted work without the copyright owner's permission, under certain circumstances.

This is a vitally important exception for education, as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship, teaching, and critiques.

"Professor Eric Faden of Bucknell University provides this humorous, yet informative, review of copyright principle:"

Fair Use Evaluation

There's no one right answer as to what constitutes a fair use of a particular copyrighted work. The answer varies from situation to situation.

Four factors are considered in all fair use evaluations. They are:

  • Purpose & character
    • Purpose: Is the copyrighted material being used for commercial or nonprofit educational purposes?
      Fair use favors educational purposes, but commercial entities can also take advantage of fair use
    • Character: Is the use of the copyrighted material transformative? (i.e. subjected to scholarly analysis, remixed, parodies, etc.)
  • Nature of the work
  • Amount
  • Effect 

These four factors are not meant to be exclusive and must be examined together. The statute does not indicate how much weight is to be accorded each factor, therefore, it is advisable to treat the four factors equally.

For help in making a fair use evaluation, please see the links below. The Columbia checklist is a printable PDF, while the American Library Association's Evaluator walks you through creating a fair use document for your records. In the event of a lawsuit, having such a document may help you prove you made a good faith effort to comply with the fair use clause of U.S. Copyright Law.

The difference between "fair use" and "infringement" of a copyright-protected work is not easy to determine. The burden of establishing a fair use is on the user and requires a very circumstance-specific analysis of the intended use or reuse of a work. Here are three examples that illustrate this challenge:

Weight of Evidence Favors Fair Use

Gray Area – Opinions May Vary

Weight of Evidence Does Not Favor Fair Use

Scanning three pages of a 120 page book and posting it to the learning management system for one semester.

Scanning seven pages of a 120 page book and posting it to the learning management system for one semester.

Scanning an entire book and posting it to learning management system.

If the scanned pages are not the "core" of the work in question, a favorable argument for fair use exists.

The amount alone is beginning to exceed best practices. However, courts are not bound by established standards and the Copyright Act contains no such standards. Opinions will vary.

Scanning an entire book clearly weighs against a finding of fair use as the entire work is used.