Fair Use

Section 107 in Title 17 of the United States Code states that the following uses are not an infringement of a copyright:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section [106], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

What does fair use mean?

The fair use exemption is intended to allow limited use of copyright material, without seeking permission, for the purposes outlined above. Fair use is the broadest – and most intentionally vague – of the copyright exemptions: what may qualify as fair use of copyrighted material in one situation may not qualify in another situation. The only requirement is that the person using the copyrighted material make a reasonable determination as to whether or not his/her use qualifies as “fair” or not.

When making a fair use determination, the law requires that four factors be taken into consideration. Each of these factors should be given equal weight:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality [both quantitatively and qualitatively] of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

(The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.)

How can I tell if something is fair use?

To aid in making a fair use determination (or to figure out if you even need to rely on fair use), please visit the following pages, based on your intended use:

• Using copyrighted works in teaching and learning (limited to Pacific audience)
• Using copyrighted works in scholarly and creative activities (shared outside Pacific)

Are there any guidelines that can help make a fair use determination?

The “four factor” test for fair use is intentionally vague to allow for a wide variety of possibly acceptable uses. However, a variety of guidelines – created by Congress and by joint academic and commercial bodies – offer some tangible, and commonly accepted, guidance in regard to how much of a work may be used, how it may be used, and for how long it may be used.

These guidelines are not law; they are considered “safe harbor” guidelines – staying within their bounds is the closest thing to an entirely defensible use. As “safe harbor” guidelines, they are very conservative, and it is likely that many uses which fall outside of their limits may still be considered fair use.

• • Guidelines
    • Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals , March 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sesss. [1976]. H. Doc. 1476: 68-70.)
    • Guidelines for Educational Uses of Music , April 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sesss. [1976]. H. Doc. 1476: 70-71.)
    • Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes , October 1981. (U.S. Congress. Congressional Record, vol 127, no. 18, pp. 24,048-49 [1981]. Reprinted soon after at U.S. Congress. House. Report on Piracy and Counterfeiting Amendments, 97th Cong., 1st sess. [1982]. H. Doc. 495: 8-9.)
    • Proposal for Educational fair use Guidelines for Digital Images , Conference on fair use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on fair use: Final Report to the Commissioner on the Conclusion of the Conference on fair use, November 1998, 33-41.)
    • Proposal for Educational fair use Guidelines for Distance Learning , Conference on fair use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on fair use: Final Report to the Commissioner on the Conclusion of the Conference on fair use, November 1998, 43-48.)
    • Proposal for Educational fair use Guidelines for Educational Multimedia , Conference on fair use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on fair use: Final Report to the Commissioner on the Conclusion of the Conference on fair use, November 1998, 49-59.)
  • Codes of best practice

An additional helpful resource is the collection of best practice guides on the Center for Media & Social Impact website. There are best practices guides for the fair use of copyrighted materials in the following areas:

• • Poetry
  • Images
  • Online Video
  • Dance
  • Journalism
  • Open Courseware
  • Scholarly Research
  • Documentary Film
  • Orphan Works

What if I’m still not sure if my use is fair use?

The law requires that you make a reasonable determination that your use is fair. If you feel that you are not able to make a reasonable argument for your proposed use, it may be best to seek permission from the copyright holder.

If you have questions about making a fair use determination, please contact copyright@pacificu.edu.