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Copyright, Fair Use, and Scholarly Communication: Fair Use

The Evergreen State College Library makes every effort to observe copyright law while allowing fair use of its materials in an educational setting.

Fair Use Fundamentals - An Infographic from the Association of Research Libraries

Fair Use

What is Fair Use?

Section 106 and Section 106A of the U.S. Copyright Act (Title 17)  make certain allowances for the use of a copyrighted work. Those uses include reproduction for purposes such as criticism, comment, news reporting, teaching (including making multiple copies for classroom use), scholarship and research. The included uses are not an infringement of copyright.

What are the Four Fair Use Factors?

The four factors to be considered in determining whether a use is fair use are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Educational use (teaching, scholarship and research) is more likely to be considered fair use than commercial purposes.

Are you transforming the original work into something else? Are you adding new information and new understanding? Scholarship and research where the work is the subject of review and commentary might be considered transformative in nature.

2. The nature of the copyrighted work;

Factual information weighs in favor of fair use while use of a fictional work does not. Published works would be more likely to be considered fair use than unpublished works where the author has the right to control the first expression of the work.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Using a large portion or all of a work is less likely considered fair use.  Using a small portion of a work may still get you into trouble if what you are using is the heart of the work or the most memorable portion.

4. The effect of the use upon the potential market for or value of the copyrighted work.

Is your use depriving a person of income or robbing a publisher of a sale? Are you making numerous copies, repeating the use or planning long term use of the item? Those choices may not be considered fair use.

Have you made the material available on the Web? An unlimited audience with no restriction is not likely to be considered fair use.

All 4 factors must be considered in total before a conclusion of fair use can be reached.

The courts look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. Courts can consider other factors as well.

 

Fair Use Tools

Fair Use Checklist - This checklist uses caselaw to help work through whether or not an intended use is a fair use.

Fair Use Evaluator - A tool designed to help determine the "fairness" of a use.

Fair Use Fundamentals: An Infographic from the Association of Research Libraries

Best Practices for Fair Use Resources

Best Practices for Fair Use

Other organizations have met and discussed copyright best practices for their particular field of study (dance, multi-media, film). These best practices, while not official TESC policy or endorsed by the college, may provide some helpful guidelines in determining acceptable fair use practices.  Based on existing cases, following the established best practices of your profession seems to be a strong defense if a use is challenged.

Daniel J. Evans Library - MS: LIB2300 - 2700 Evergreen Parkway, NE. Olympia, WA 98501 - 360-867-6250