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Copyright

Fair Use and The Four Factors

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances without permission from the author or owner.  Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

To determine whether a specific use under one of these categories is "fair," courts are required to consider the following factors:

  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 relation to the copyrighted work as a whole
    • is it long or short in length, that is, are you copying the entire work, as you might with an image, or just part as you might with a long novel
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Remember that without the fair use doctrine, all copying of any amount for any purpose would be a violation of copyright.  It is not the only exception to the exclusive rights of copyright, but it is the most significant.   And it is of critical importance in the work of teaching and learning, and creating new knowledge.

Fair use is also intentionally -- and often frustratingly -- vague.  It does not contain quantitative limits or absolutes, but rather a sliding scale of four considerations.  It is up to the user to consider these four factors and decide if they believe the use they are contemplating is a legitimate one.   In many ways, it would be significantly easier if there were a definite measure, but the law's non-specificity also allows for discretion depending on how you are using the material.  No one factor is deciding and this is a good thing overall! 

Remember also that you can always ask the copyright holder for permission to use their work.  If you have their permission, you do not need to worry about making a Fair Use assessment.  You'll find some guidance at Obtaining Permission from Copyright Holder.

Additional resources: Measuring Fair Use: The Four Factors (Stanford University)

Quick Charts

This chart is meant to provide a quick reminder of the factors involved in determining whether the use of a copyrighted work is fair. Remember that it is the combination of the answers to all four questions that make up the final determination.

The four Fair Use factors Characteristics that would point towards Fair Use: Characteristics that would point towards Infringement:
1. Purpose and character of your use of the work Noncommercial, educational, scholarly, newsworthy, or transformative Commercial and/or entertainment
2. Nature of the work used Factual, based on public documents Creative

3a. Amount and substantiality of the work used

Small portion - and not the "heart" of the work

Entire work

3b. Proportion of your work which is made up of the copyrighted work Small % of your new work Majority of your new work
4. Economic effect of use Little or no devaluation or money lost Substantial actual or probable money lost because of use

Although not part of the actual law, the following have become, through the development of guidelines and through court cases, important additional considerations that are often added into the test for determining a legitimate fair use.

Additional Considerations On the "good" side of the spectrum: On the "bad" side of the spectrum:
Exposure Single use, small audience Multiple use, large/public audience
Premeditation and/or time limit Spontaneous, one time use Planned, systematic, and/or continuing use
Honesty of use Good faith, credit to owner given Deception, plagiaristic

Courts have also been regularly ruling that digitizing content for individuals with disabilities is, in itself, a fair use. If you are a student who is registered with AccessAbility Services (AAS) and has an alternative format accommodation, or if you are Faculty with a student in your class who is registered with AAS, please email AAS for support.  AAS can provide digital content to the registered student.  Please note, however, that it would be a violation of copyright to share these files more widely.

Fair Use Evaluator

Springshare's information on Accessibility in Libguides - - MHC Accessibility Barriers Form