What is fair use?
Fair use is the use of copyrighted works without asking permission from the copyright owner(s). What that looks like in practice varies and depends on an analysis of four different factors:
- purpose and character of the use
- nature of the work
- amount used
- effect upon the market
The Center for Media and Social Impact at American University is sponsoring development of a growing number of fair use best practice statements that make it easier than ever to know what's fair. The best practices statements follow recent trends in court decisions in collapsing the fair use statute's four factors into two questions: Is the use you want to make of another's work transformative - that is, does it add value to and repurpose the work for a new audience - and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.
But what if your purpose is not transformative? For example, what if you want to copy several chapters from a textbook for your students to read? Textbooks are created for an educational audience. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when they created it, we are not "repurposing" the work for a new audience.
In cases like these we also look at whether the copyright owner makes licenses to use their work available on the open market -- whether there is an efficient and effective way to get a license that lets us do what we want to do. If not, the lack of the kind of license we need to use the materials supports our relying on fair use due to the market's failure to meet our needs. If you would like to know more about a case on the subject of nonprofit educational non-transformative uses, please read the Georgia State case.
Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.
