For questions regarding copyright and fair use, please contact Denise Gehring.
The purpose of the United States Copyright Act is to encourage that is “To promote the Progress of Science and useful Arts…,” United States Constitution Art. 1 §8. The original underpinnings for the clause were that copyright should not restrict access but rather the alternative proposition of offering an incentive for the creation and dissemination of diverse types of knowledge in diverse formats.
It is important to keep this goal in mind as we deal with questions arising in our institutions on copyright. Pierre N. Leval in Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) has authored one of the ionic articles which traces fair use, and its treatment by the courts including the Supreme Court of the United States going back to the case of Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), (No. 4901).
In his article quoting the Supreme Court is an excellent articulation of copyright’s role not only in academia but throughout the United States:
“Copyright is intended to increase and not impede the harvest of knowledge… The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.” Leval, p1108, quoting the Sony case, U.S. at 429.
In dealing with the scope of competing interests in the utilization of copyrighted material, theories have arisen to limit the monopoly of the copyright holder under certain circumstances. This is wherein the doctrine of fair use has come to play a major role in copyright law. Fair use is a doctrine of equity that was first presented by Justice Story in Folsom v. Marsh. Even then it was articulated as a weighing of competing interests. Thus it has passed down to us through our courts or common law through the years. It became the fair use balancing or evaluation of the facts surrounding the use of copyrighted material. Ultimately, it was formulated as an evaluation of four important factors. The factors: purpose, nature, amount, and effect on the potential market are now codified in 17 U.S.C. §107.
United States Code, Title 17, §107 Limitations on Exclusive Rights: Fair Use
“Not withstanding the provisions of sections 106 and 106A, the fair use of copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright, in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:”
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all of the above factors.
Please note the brevity of this statute and there is really no guidance here in weighing these factors. For interpretation and explication we look to our courts, usually, Federal Court.
Fair Use is an equitable rule of reason developed through court opinions. This doctrine in an abbreviated form was codified at §107 of the Copyright Act.. IT IS THE MOST IMPORTANT LIMITATION ON THE RIGHTS OF THE COPYRIGHT HOLDER !!!!!!
Four Factor Balancing Analysis:
The information on weighing the fair use factors is provided with permission from Carl Johnson, Copyright Licensing Office, Brigham Young University. It is one of the better summations of a complex area of law. Included at the end is the Fair Use Checklist used by the University. You may find it useful, you can print it and adopt it for your analysis, if used beyond your personal use please provide attribution.
The Meaning of the Four Fair Use Factors
The purpose of the fair use provision is to allow limited use of copyrighted material without obtaining prior permission from the copyright owner. Consideration of all of the fair use factors explained below is required. However, all factors do not have to be on the favorable side to reasonably conclude that a valid fair use claim can be made.
A fair use analysis is fact driven. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts.
The same fair use analysis applies to all formats and mediums, including the digital environment, and includes not only the right of reproduction but also the rights of performance, display, adaptation and distribution.
Purpose and Character of the Use
This factor will generally weigh in favor of fair use if the proposed use is nonprofit and educational-as opposed to a commercial use. Most uses in the university environment can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. A nonprofit, educational use would likely favor a finding of fair use, but remember that the other three factors must also be considered. Additionally, with respect to the reproduction right, this factor is more likely to weigh in favor of fair use if the use is transformative rather than verbatim copying.
Nature of the Copyrighted Work
This factor will generally weigh in favor of fair use if the work to be used is factual in nature (technical, scientific, etc.), as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and so on. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected “facts and ideas” on the one hand and protected “expression” on the other, is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression.Fair use applies to unpublished works as it does to published works, but the author’s rights of first publication may be a factor weighing against fair use if a work is unpublished.
Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
Although there are no numerical or percentage limits, the larger the amount of a work one uses, the less likely it will be fair use. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and allows the doctrine to be practical in the higher education setting. This factor also takes into consideration the quality of the portion taken as well as the quantity. Sometimes, even if only a small amount is taken, this factor may weigh against fair use if the portion can be justly characterized as “the heart of the matter.” It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more of the original taken, in amount and substantiality, the greater the negative impact on the market for the copyrighted work.
The Effect of the Use on the Market for or Value of the Copyrighted Work
This factor examines the anticipated effect of the use on the publisher’s market. If the proposed use is likely to become widespread and would negatively affect the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four, although the factors all interrelate and must be evaluated in conjunction with each other.
Weighing and Balancing the Factors
A central principle of the fair use analysis is the flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the purposed use will not fit the fair use exception and may require permission from the copyright owner.
The law may permits some uses of materials protected by copyright when a reasoned analysis concludes the use qualifies for Fair Use. Use the Checklist for Fair Use to help determine if portions of, or all of the copyrighted work can be used without permission. Contact the Copyright Licensing Office if you have questions or need assistance. If desired, review the completed checklist with the Copyright Licensing Office, 422-9339 or 3760 HBLL
Again this is from the Copyright Licensing Office at Brigham Young University with Permission of Carl Johnson.