Fair Use and Copyrighted Works

Exclusive Rights of Copyright Holders

In U.S. copyright law, original works of authorship (e.g., literary, dramatic, or musical works like novels, plays, songs, sculptures, software, architecture, etc.) come under the protection of copyright law as soon as they are fixed in a tangible form (i.e., written down, saved in a document, recorded, etc.). The exclusive rights granted to copyright holders of such works are listed in 17 U.S. Code §106, which allows them to do or authorize any of the following:

To reproduce the work (i.e., make digital or analog copies)
To prepare derivative works (e.g., translations, sequels, abridgements, etc.)
To distribute copies of the work
To perform the work publicly
To display the copyrighted work publicly
In the case of sound recordings, to perform the work publicly by means of digital audio transmission

Without permission of the copyright holder or a specific exception outlined elsewhere in the copyright law, it is a violation of the exclusive rights of the copyright holder to do any of the above.

Fair Use Defined

Fair Use is a concept in copyright law that allows the use of copyrighted materials without payment or the creator’s permission in certain situations. In other words, it puts a limit on the exclusive rights granted to copyright holders. The fair use exception states that the fair use of copyrighted materials for purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright” (title 17, U.S. Code §107). To determine if any particular use is a fair use, the exception gives a four factor test to apply:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes.
This factor focuses on how the copyrighted material is being used. To make money? To teach? A completely new/transformative use? Nonprofit educational and highly transformative uses tend to favor fair use, where commercial uses tend not to.
The nature of the copyrighted work.
Use of a purely factual work or work that is already published is more likely to be considered fair use than use of someone's creative work or work that is still unpublished.
The amount and substantiality of the portion used in relation to the copyright protected work as a whole.
There are no bright-line rules for amount. Using a small portion tends to favor fair use, while using large portions or portions central to the work tends to weigh against it.
The effect of the use on the potential market for or value of the copyright protected work.
If a use harms the copyright holder’s ability to make money off of their material, it weighs against fair use. Uses that do not harm the market for a work tend to favor fair use.

When a court decides whether a particular use is a fair use, each of the four factors are looked at individually before being considered together to make a cumulative argument for or against fair use.

Interpreting Fair Use: some guidelines

Even with the four factor explained, fair use can be difficult to apply. For example, without any bright-lines it is difficult to know how much can be taken while still qualifying as a “small amount” when considering the third factor. Recognizing this difficulty and wanting to address it at least partially, Congress released several reports giving some examples and minimum thresholds for how to interpret fair use. The guidelines in the report from the House of Representatives are the most widely referenced on this subject, and because they give clear, concrete examples they often get confused with the actual copyright law. The following is taken from the House Report on Section 107 and can be useful as a minimum standard for interpreting fair use, but it should be understood that these guidelines are not the same as copyright law. Many uses that exceed the thresholds cited in these guidelines have been found by courts to be fair use. These are simply the examples the House considered firmly and unambiguously within the boundaries of fair use.

House Report Guidelines:

Single copies of materials may be made for scholarly research or use in teaching or preparing to teach a class.
Multiple copies for classroom use may be made, not to exceed more than one copy per student in a course if they meet all the following tests:

a. brevity

i. for poetry: a complete poem if less than 250 words; an excerpt from a poem no longer than 250 words

i. for prose: complete articles or stories if less than 2500 words; excepted prose of not more than 1,000 words or 10% of the work, whichever is less

ii. illustrations: one per book or periodical

iii. special works combining illustrations and text (such as children's books): not more than 10% of the words in the text and not more than two of the published pages

b. spontaneity

i. the decision to use the work and the time of its use are so close that it would be unreasonable to expect a timely reply to a request for permission

c. cumulative effect

i. material copied can be used in only one course

ii. not more than one short poem, article, story, essay, or two excepts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term

iii. no more than nine instances of such multiple copying may be done for one course during one class term d. each copy contains a notice of copyright.

Additionally,

a. copying cannot be used to create or replace anthologies

b. workbooks or “consumables” cannot be copied

c. copying may not be used to substitute for purchases of books, so that an instructor copying items repeatedly from term to term violates copyright

Penalties for copyright infringement

Penalties are stiff: depending on the intent involved in the infringement, a copyright holder may be awarded either actual damages sustained by the infringement, or statutory damages from $200 to $150,000 per violation, as well as the assessment of attorney's fees. While the person infringing copyright is the prime offender, the institution may also be sued for failure to follow the law.

Resources for thinking through fair use

Information about fair use exception and best practices for relying on it to make copies is available on the library’s website (https://libguides.bethel.edu/copyright/fairuse). Additionally, the University Library Copyright Liaison, Scott Kaihoi, is available to consult with faculty in need of additional information on fair use and other copyright-related issues (s-kaihoi@bethel.edu, ext. 6588).

Print Services policy and institutional integrity

The Print Services staff will not knowingly participate in reproducing materials in violation of copyright. They will refuse to photocopy materials, and this is within institutional policy. The Print Services staff will notify the Office of Academic Affairs of individuals who repeatedly request copying in violation of copyright. If you have a question about copying materials for class use, please ask the Print Services staff or the University Library Copyright Liaison.

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