Copyright - Fair Use

What is Fair Use?

Fair Use (§ 107) allows for “fair use” of a copyrighted work, including photocopying for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarships or research if the instance of use can pass four tests:

  • Purpose -“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
    Congress favored nonprofit educational uses over commercial uses. Copies used in education, but made or sold at monetary profit, may not be favored. Courts also favor uses that are "transformative" or that are not mere reproductions. Fair use is more likely when the copyrighted work is "transformed" into something new or of new utility, such as quotations incorporated into a paper, and perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original. For teaching purposes, however, multiple copies of some works are specifically allowed, even if not "transformative." The Supreme Court underscored that conclusion by focusing on these key words in the statute: "including multiple copies for classroom use."

  • Nature -“the nature of the copyrighted work”
    This factor examines characteristics of the work being used. It does not refer to attributes of the work that one creates by exercising fair use. Many characteristics of a work can affect the application of fair use. For example, several recent court decisions have concluded that the unpublished "nature" of historical correspondence can weigh against fair use. The courts reasoned that copyright owners should have the right to determine the circumstances of "first publication." The authorities are split, however, on whether a published work that is currently out of print should receive special treatment. Courts more readily favor the fair use of nonfiction rather than fiction. Commercial audiovisual works generally receive less fair use than do printed works. A consumable workbook will most certainly be subject to less fair use than a printed social science text.

  • Amount -“the amount and substantially of the portion used in relation to the copyrighted work as a whole”
    Amount is both quantitatively and qualitatively measured. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and the amount needed to serve a proper objective. One court has ruled that a journal article alone is an entire work; any copying of an entire work usually weighs heavily against fair use. Pictures generate serious controversies, because a user nearly always wants the full image or the full "amount." Motion pictures are also problematic because even short clips may borrow the most extraordinary or creative elements. One may also reproduce only a small portion of any work but still take "the heart of the work." The "substantiality" concept is a qualitative measure that may weigh against fair use.

  • Effect -“the effect of the use upon the potential for or value of the copyrighted work”
    Effect on the market is perhaps even more complicated than the other three factors. Some courts have called it the most important factor, although such rhetoric is often difficult to validate. This factor fundamentally means that if you make a use for which a purchase of an original theoretically should have occurred-regardless of your personal willingness or ability to pay for such purchase-then this factor may weigh against fair use. "Effect" is closely linked to "purpose." If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then effect is presumed. Occasional quotations or photocopies may have no adverse market effects, but reproductions of software and videotapes can make direct inroads on the potential markets for those works.

Multiple Copies and Fair Use

In order for multiple copying of a work to be protected by the Fair Use statue, the following tests or conditions must be met:

Brevity

Articles, stories, or essays must be less than 2500 words and excerpts less than 10% of the work or 1000 words, whichever is less. This requirement is very difficult to satisfy; six pages of 12-point type generally exceed 2500 words, and three pages of 12-point type generally exceed 1000 words. The average length of most journal articles is probably longer than this. Exceeding these limits weighs against a finding of fair use.

Only one chart, graph, or drawing may be copied from a work without permission. One must also take into consideration that if individual illustrations from separate works are being "anthologized" into a set, this weighs against a finding of fair use.

Spontaneity

The decision to use the work must be so close in time to the need for the work that it would be impractical to seek permission from the publisher to photocopy it. This factor must be considered in light of the fact that many publishers of books and journals are registered with the Copyright Clearance Center, a permissions clearinghouse that is often able to grant permission within one or two days. Unfortunately, other copyright owners may take significantly longer to respond to requests for permission. However, faculty members are expected to apply the test of spontaneity in good faith, and not use procrastination or poor planning as an excuse to claim fair use.

Cumulative Effect

In order to qualify as fair use, photocopying must not be cumulatively excessive. Furthermore, no more than one work per author may be copied for more than one class, nor may any faculty member engage in such photocopying more than nine times per term. These factors are difficult to satisfy and require careful documentation to establish.

If the photocopying ultimately substitutes for the purchase of the original material, this will weigh against a finding of fair use. For example, if a department purchases one subscription to a journal which it then circulates for persons to systematically make multiple photocopies without permission, of the articles contained therein, clearly the publisher will suffer a loss of revenues from additional subscriptions or photocopying royalties which could have been collected. Such copying is likely to be deemed excessive and not within the bounds of fair use.

Notice of Copyright

Copied pages must include the original copyright notice pertaining to the copied work. Copyright notices are no longer required to protect the author's copyright interest; if the work contains one, however, the page containing it must be included with the part that is copied. Failure to do so will weigh against a finding of fair use.

Cost to Students

In order for multiple copies to qualify as fair use, students are not to be charged more than the actual cost of photocopying.


 

Fair Use Court Cases

Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)

Kinko's was held to be infringing copyrights when it photocopied book chapters for sale to students as "coursepacks" for their university classes.

Purpose: When conducted by Kinko's, the copying was for commercial purposes and not for educational purposes.

Nature: Most of the works were factual -- history, sociology, and other fields of study -- a factor which weighed in favor of fair use.

Amount: The court analyzed the percentage of each work, finding that five to 25 percent of the original full book was excessive.

Effect: The court found a direct effect on the market for the books because the course- packs directly competed with the potential sales of the original books as assigned reading for the students.

Three of the four factors leaned against fair use. The court specifically refused to rule that all coursepacks are infringements, requiring instead that each item in the "anthology" be individually subject to fair-use scrutiny.

American Geophysical Union v. Texaco Inc., 37 F.2d 881 (2d Cir. 1994), modified, 60 F.3d 913 (1995)

The court ruled that photocopying of individual journal articles by a Texaco scientist for his own research needs was not fair use. The court amended its opinion to limit the ruling to "systematic" copying that may advance the profit goals of the larger organization.

Purpose: While research is generally a favored purpose, the ultimate purpose was to strengthen Texaco's corporate profits. Moreover, exact photocopies are not "transformative"; they do not build on the existing work in a productive manner.

Nature: The articles were factual, which weighs in favor of fair use.

Amount: An article is an independent work, so copying the article is copying the entire copyrighted work.

Effect: The court found no evidence that Texaco reasonably would have purchased more subscriptions to the relevant journals, but the court did conclude that unpermitted photocopying directly competes with the ability of publishers to collect license fees. According to the court, the Copyright Clearance Center (CCC) provides a practical method for paying fees and securing permissions, so the copying directly undercuts the ability to pursue the market for licensing through the CCC.

Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context.

*Portions of this document were taken from "Fair Use: Overview and Meaning for Higher Education" created by CETUS (Consortium for Educational Technology for University Systems) http://www.cetus.org

 

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