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What is fair use?

The Center for Social Media and Washington School of Law at American University are sponsoring development of a growing number of Fair Use Best Practices statements. They follow recent trends in court decisions in collapsing the Fair Use Statute's four factors into two questions: 

  • Is the use you want to make of another's work transformative - that is, does it add value to and repurpose the work for a new audience
  • Is the amount of material you want to use appropriate to achieve your transformative purpose? 

Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.

But what if your purpose is not transformative? For example, what if you want to copy several chapters from a textbook for your students to read? Textbooks are created for an educational audience. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when they created it, we are not repurposing the work for a new audience. Or what if you are repurposing the work for a new audience and adding value to it by comparing it, critiquing it or otherwise commenting on it, but you want to use a lot more than is really necessary to make your point?

In cases like these we also look at whether the copyright owner makes licenses to use the work available on the open market - whether there is an efficient and effective way to get a license that lets us do what we want to do. If not, the lack of the kind of license we need to use the materials supports our relying on fair use due to the market's failure to meet our needs. If you would like to know more about a case on the subject of nonprofit educational non-transformative uses, read the Georgia State Electronic Course Materials Case.

However, fair use exists within a larger context. When we create materials in an educational setting, fair use is part of a web of authority we rely on to use others' works. No one strategy is enough. Libraries license millions of dollars' worth of academic resources for our use every year. And there are millions of Creative Commons licensed works available online. We rely on implied licenses to make reasonable academic uses of the works we find freely available on the open web. And we rely on fair use. If you can't find what you want to use in your library, on the web or through Creative Commons, and your use doesn't qualify as fair use, getting permission is becoming easier every day. The Copyright Clearance Center now offers both transactional (item-by-item) licenses and subscription licenses to colleges and universities. And if you conclude that your use is not fair, but you can't license access to the work, circle back around to fair use again, because the lack of availability of a license weighs in favor of fair use.

There are many other resources providing guidance for the use of the four fair use factors:

This page also includes material from the Copyright Perspectives blog from Penn State at http://copyright.psu.edu/fairuse/.