Fair Use

The purpose of copyright, as enshrined in the Constitution, is "to promote the progress of science and useful arts" - in other words, to encourage intellectual activity.  Protecting intellectual property helps to do that.  But so does the free flow of information, especially in an academic setting. Therefore, copyright law attempts to balance these two public goods by "securing for limited times to authors and inventors exclusive right to their respective writings and discoveries" while at the same time granting limited rights to the academic community to copy material for the purpose of teaching, scholarship, or research under the principle known as "fair use."

Copyright law does not set precise limits for what can and cannot be copied or scanned. Instead, it provides a framework for trying to determine whether or not a particular use is fair. The Copyright Act of 1976 gives four factors to be considered in determining whether or not use in a particular case is fair:

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

For each of the four factors, there are characteristics which tip the scale toward or away from a finding of fair use. Those are described below. When a particular instance of copying or scanning meets the criteria for fair use, you may do so without seeking copyright permission.  In cases where a particular use may not clearly meet all four of the criteria, then each must be weighed to determine whether or not the use is in balance fair or not. If in balance the use does not meet the criteria, then you must obtain Copyright Permission in order to reproduce it. (And, of course, the same goes for cases in which a use is clearly not fair use!)

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

If you are making copies or scanning documents for use by students in your classes, that makes it more likely to be fair use. Just because we are a nonprofit educational institution, however, does not mean that all of our uses are nonprofit educational uses. The use of copyrighted material for entertainment purposes, or for promotion or marketing of paid events, or as part of any item that will be sold for profit, make it less likely to be fair use. There are also neutral circumstances in this category - copies to be used by academic committees, or to be used by students in extracurricular organizations that have an academic component. Just remember that different standards apply depending on the purpose of the use.

More Fair

  • Use by a class

Neutral

  • Use by a committee or department
  • Educational use in an extracurricular organization

Less Fair

  • Use for entertainment
  • Use for marketing or promotion of paid events
  • Use in another work that will be sold for profit

Factor 2:  The nature of the copyrighted work

Use of primarily factual material is more likely to be fair use. This includes scholarly and journalistic writing, biography, documentary photographs, charts, graphs, tables, etc. Use of primarily creative material is less likely to be fair use - fiction, drama, poetry, artistic works, etc. There are also neutral cases - essays, opinion and editorial writing, and illustrations - which have no net effect on the balance.

Why is use of scholarly works more likely to be fair use? Scholarly works are intended to be used for educational purposes; this is implicit in their creation. Scholarly works, like journalistic works, are also intended to be representational of the real world, and reality is a shared commodity. This certainly doesn't imply that scholarly writing isn't creative work, but it is creative work rooted in facts, and facts can't be copyrighted.  A short story or poem, however, is entirely created by the author, who is thus more completely the owner of that creation. 

More Fair

  • Factual material
  • Scholarly writing
  • Journalistic writing
  • Documentary photographs
  • Charts, graphs, tables, etc.

Neutral

  • Essays
  • Opinion and editorial writing
  • Illustrations

Less Fair

  • Creative material
  • Fiction, drama, poetry
  • Artistic works

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

The law does not set concrete guidelines for the amount that can be reproduced, but the less of a copyrighted work you copy or scan, the more likely it is to be fair use.  If you were to copy half a book it would certainly not be fair use as it would have been reasonable to require students to purchase the book for class.

Academics and publishers have been arguing for 30 years about how much is too much. Publishers have been pressing for shorter limits - a maximum of 2500 words, and less under most circumstances. Academics have been arguing for longer limits - one article or chapter, or up to 25% of content. Resolution of this quarrel is unlikely in the foreseeable future.

Given this difference of opinion, it would be reasonable to consider the publishers' limits (2500 words or less) as favoring fair use, and the academics' limits (1 article or chapter, or up to 25% of total content) as the neutral case. The limits promulgated by publishers are thus given below under "More Fair." More than one article, chapter, short story, etc., or more than 25% of the content of a book or journal issue can be regarded as making a use less likely to be fair. Even the most zealous proponents of fair use would agree that copying more than 50% of a book or journal issue is never appropriate.

The best practice is to reproduce as little of a work as is necessary for the intended educational purpose. The less you copy, the more you respect copyright.

More Fair

  • An article, story or essay of less than 2,500 words
  • An excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words
  • A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words
  • One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue

Neutral

  • One article from a particular journal issue
  • One chapter from a book
  • One short story or poem from a particular author or source
  • A small number of charts, graphs, diagrams, cartoons, or pictures from the same book, journal, or artist

Less Fair

  • More than one article from a particular journal issue
  • More than one chapter from a book
  • Multiple short stories or poems from a particular author or source
  • More than 25% of any book, journal issue, or other work
  • A large number of charts, graphs, diagrams, cartoons, or pictures from the same book, journal, or artist

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

The basic question is whether or not your making a copy is depriving the copyright holder of legitimate income (hence disincentivizing intellectual activity - remember the purpose of copyright.) So you have to ask yourself - is my copying a substitute for purchase of an original? Am I depriving someone of a sale? In the example above of copying half a book, the answer is obviously yes - having every student in the class purchase a copy would have been a reasonable alternative. However, giving out copies of scholarly articles is different - having every student start a subscription to every journal you use would not be a reasonable alternative.

But there are always exceptions. If you were to require your students to read every article in a special issue of some periodical, it would be reasonable to require them to buy that issue. If your students have to read ten different short stories, then it would be reasonable to require them to buy an anthology containing those stories if one exists.

Another aspect of this factor is whether or not the library has purchased a copy or access to the work you want to reproduce. Why does this matter? Because by definition the library buys resources for academic use by the whole Saint Michael's community. (In fact, the library's subscriptions to journals frequently cost more than individual subscriptions, and the library buys more expensive editions of books.) While this does not mean that library materials can be copied without restrictions, the fact that the library has paid for use of a book or journal does allow broader use of these than of items owned by an individual faculty member. If you want to copy or scan something, check to see if the library has it, and if not, contact your library liaison or the collection development librarian to see about buying it.

More Fair

  • The item to be reproduced is available through the library
  • The item to be reproduced is not available for sale as a unit

Neutral

  • The instructor owns an original of the work

Less Fair

  • Neither the institution nor the instructor has purchased the work (this includes items received on interlibrary loan)
  • Copies substitute for, compete with, or discourage sales of the original

Weighing the Factors

Fair Use is determined by weighing the balance of these four factors.  If a potential use falls under "More Fair" on all four factors, it is almost certainly fair use. However, if it falls under "Neutral" or "Less Fair" on a majority of factors it is almost certainly not fair use, and you must request Copyright Permission in order to use it.

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