Copyright & Fair Use

What is Fair Use?

Fair use is stipulated in section 107 of Title 17 of the U.S. Code. It states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies of phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

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 of the portion used in relationship to the work as a whole.

4. The effect of the use on the potential market for the work.
 

Is there a way to determine fair use?

 All four factors listed above must be considered together, rather than relying on only one or two of the factors.

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

For nonprofit educational institutions, this factor weighs in favor of fair use. However, all four factors must be balanced, and the non-profit, educational purpose of a use is not sufficient to make any particular use "fair."

 2. The nature of the copyrighted work. Fair use is applied more readily to factual or scholarly works than to works that are predominantly expressive in nature (such as fiction and poetry).

This factor favors fair use when the work in question is predominantly factual or scholarly as opposed to being predominantly expressive.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Under the third fair use factor, the proportion of any work copied for reserve as a matter of fair use should be justifiable in light of the nature of the work and the purpose of the use. 

The following guidelines take into account the non-commercial, educational purpose of course reserves. The guidelines are not absolute .

• As a general matter, a single article from a journal issue or a single chapter from a book may be used as a matter of fair use.
• As a general matter, if the reserve material constitutes more than 10% of a book or collective work (such as a journal issue), the Libraries will copy it for reserve use only if the other three factors on balance favor fair use, or if permission is obtained from the copyright owner.
• As a general matter, if the reserve material constitutes more than 25% of a book or collective work (such as a journal issue), the Libraries will not copy the work for reserve use.  Permission must be obtained from the copyright owner.

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

A use is more likely to be fair if it does not have a substantial negative impact on the market for a work. In evaluating the market impact of copying a work for reserve use, the Libraries refer to the following guidelines.

• For monographs and book chapters, is the  monograph or book available in Books In Print ( for sale through normal channels)?  A work's out-of-print status will generally be deemed to weigh in favor of fair use.
• For journal articles, are there reasonable alternatives to copying, such as reprints or electronic subscriptions, to weigh against fair use.
• Is the work designated as a required reading or, on the other hand, an optional or recommended reading for the course for which it is placed on reserve. If the work is not required, this consideration will generally be deemed to weigh in favor of fair use.

A helpful instrument in determining fair use is the Colombia University's fair use checklist.

EWU Libraries adhere to US copyright law (Title 17 of the US Code). Section 107 of the copyright law, the Fair Use Doctrine, provides the guiding principle behind the Libraries' reserve collections. Section 108 deals with reproduction by libraries and archives, and may, in some cases, have bearing upon our ability to use photocopies for reserves.

• Copyright Advisory Office (Columbia University Libraries): Offers help on how your reserve materials fit into the complex area of copyright law.
• Copyright & Fair Use (Stanford University Libraries): This link goes to their section on Fair Use.  It goes over what is fair use, the four factors to measure fair use and summaries of cases regarding fair use cases.
• Fair Use (Columbia University)
• Fair Use (University of Texas Libraries): This site contains a lot of good information on Fair Use and how to determine if something falls within the fair use guidelines.
• 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use (Cornell University Law School)