Scholarly Communication: What is fair use?

Fair use is a legal structure that is part of copyright law. Fair use carve-outs are an acknowledgment that there are some socially beneficial examples of infringing use and that those benefits may outweigh the benefits of exclusive copyright.

 Fair use is particularly important in education and other non-profit endeavors, as it helps us adapt, apply, analyze, and critique copyrighted materials. As a teacher and scholar, your work often relies on fair use!

At the same time, fair use is sometimes nebulous and not equitably applied. While educational uses are privileged, fair use is not a blanket exemption to copyright, even in the classroom. Fair use is designed as an affirmative defense against allegations of copyright infringement.  A quick “test” of fair use that you can use for yourself involves four parts and is judged on a more/less likely than not basis.

Fair use is judged on four factors: 

• The purpose and character of the use.
  • Educational or personal uses are more likely to be fair use.
• The nature of the copyrighted work.
  • Factual works are more likely to allow for fair use than creative works.
• The amount and importance of the portion used in relation to the work as a whole.
  • The smaller the percentage of a work you use, the more likely it is to be considered fair use, as long as the portion you use isn’t the “core” or “heart” of the work.
• The effect on the potential market value of the copyrighted work.
  • If your use is likely to be seen as a substitute for purchasing from the copyright holder, it is not likely to be fair use.

This more in-depth checklist from Columbia University can also help you evaluate your potential use.