Copyright Laws

What is fair use? 

Fair use is a doctrine under copyright law that permits certain users of a work without the copyright holder's permission. Fair use is an exemption to the exclusive rights of copyright holders. Fair use may be used for a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research).   

Fair Use Factors

• The purpose and character of use, including whether such use is commercial or is for non profit educational purposes 
  • Educational use does not automatically render fair use; it is just one helpful factor. 
  • It is also essential to consider what market the material was specifically created for.
    • For example, many materials are created specifically for the educational market, and one cannot use fair use to make these works free of charge. 
• The nature of the copyrighted work.
  • Is it published or unpublished? 
    • Unpublished works generally have greater protection because courts consider the copyright holder's right to first publication.
  • Is it factual or creative?
    • The more creative a work is, the stronger the copyright. Purely factual information does not receive copyright protection.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • How much of the work are you using?
    • Smaller portions of a work are more likely to qualify as fair use. However, the statute has no rigid page numbers or percentage guidelines.
  • How significant is the portion you are using to the work as a whole? 
    • A small amount of work may be too much if it reproduces "the heart of the work."
• The effect of the use upon the potential market or value of the copyrighted work.
  • How many copies are being made, and how widely will it be distributed?
    • If there is a clear market or licensing mechanism, it is less likely to be fair than for the use of work for which there is little to no market or potential market.
    • Making numerous copies of a work does not favor fair use; this includes digital reproduction, which can make a fair use violation worse as it is easier to copy and distribute widely. 

Here are a few useful steps from Boston College Libraries Copyright & Scholarship Guide to avoid fair use violations

1. Do a fair use analysis in good faith when using third-party material.
2. Copy as little material as you can to still make the use you need.
3. In an online setting, always check to see if the Learning Commons has licensed material you want to use. It is always better to point students to material in an accessible database where copyright law is protected.
4. Consider placing material in a password-protected environment only available to those enrolled in the class and terminate the students' access to the material when class is over. 
5. Link to the material whenever possible instead of copying it. 
6. If you have determined that the use cannot be considered fair, ask the copyright holder permission to use it. This page outlines the correct steps in this process.