What Is Fair Use?

Section 107 of the Copyright Law basically says that a "fair use" is not an infringement of copyright. It provides that the exclusive rights of the copyright holder to the following may be limited under "Fair Use" conditions:

  • Produce copies of the work
  • Prepare derivative works based on the original work
  • Distribute copies
  • Perform in public
  • Display in public

Those other than the copyright holder must normally obtain permission from the copyright owner to lawfully engage in any of these activities. However there are certain favored purposes that support production of new knowledge through writing and/or teaching, which are considered "fair use". Some of these are:

  • Criticism
  • Comment
  • News Reporting
  • Teaching/Scholarship
  • Research

To help ensure that the Copyright Law serves the dual purpose contemplated for it in the Constitution (to protect the rights of the copyright holder and serve the society as a whole by promoting the free exchange of information), the Courts developed the four factors that must be weighed in making a decision concerning whether any particular use fits within the definition of Fair Use. They are:

  • The purpose and character of the use, including whether it is educational or commercial;
  • The nature of the copyrighted work;
  • The amount and substance of the portion used;
  • The effect of the use on the potential market for or value of the work.

Each use of a work should be preceded by a determination of these four factors and how they apply to the facts and circumstances.

Use this checklist as a record of your determination on Fair Use.

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