Fair Use: Not Carte Blanche
What's fair use?
“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 relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.”
Purpose and Character
•Not restricted to list of purposes in preamble
•Works copied for educational, non-profit or personal use are more likely to fall within fair use than works copied for profit
•Transformative uses fall within fair use (e.g. parodies, criticism & commentary)
•Does it add something new, further purpose, different character, or alter with new expression, meaning, or message
•Commercial—a higher bar to finding fair use, but not insurmountable. Likewise, non-profit helps fair use claim, but doesn’t guarantee it.
Nature of Works
•Original intent of copyright is to promote commerce and the exceptions don’t thwart this original purpose
•Works more likely to be subject to fair use include factual and non-fiction works; published works; and, works important to favored education objectives
•Works less likely to be made fair use of include highly creative work (art, music, novels, films, plays), unpublished work
Amount and Sustaintiality
•Quantity--smallest amount possible for favored educational purposes
•Quality--substantiality—is this part of the work the “heart” of the work—no matter how small?
•But, use of the entire work in some form may be fair
Effect of Use on the Market
•Tends to be the most crucial factor (e.g. making copies of text books so that your students don’t have to purchase it)
•Not just this one instance of copying, but widespread conduct like this. What if every instructor, every school, and every library decided to make a copy rather than purchase one?
•“Potential” doesn’t mean “theoretical,” but a market that the rights-holder might logically enter given the work.