WHAT IS FAIR USE?

The current copyright law (Title 17, Section 107, U.S. Code) gives the owner of a copyright the exclusive right to reproduce, perform and distribute a work, with very few exceptions. The most important exception to this exclusive right is referred to as "the fair-use exception."

The fair-use exception permits the reproduction of a small portion of a copyrighted work without the copyright owner's permission--but only under very limited circumstances.

The purpose of the exception is to allow students, teachers, researchers, scholars, reporters and critics the right to refer to a copyrighted work in their own scholarship, teaching, articles and critiques.

The criteria as designated in the law for using copyrighted materials under the fair-use exception are governed by four principles outlined in Section 107 of the Copyright Act of 1976:

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.

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

What constitutes fair use of a copyrighted work is a complex issue and problem. The answer varies from situation to situation and depends on how the courts interpret the law. In general, however, the courts tend to favor the following scenarios:

1. Not-for-profit, educational uses of material rather than uses that lead to commercial or monetary benefit for the person using the copyrighted material.

2. Use of factual material rather than use of creative material or use of published material rather than unpublished material. (The more a work is judged to be a creative, original work, the more likely courts are to be strict about enforcing the copyright holder's claim. The more a work is judged to be factual, the more likely a court is to look favorably upon a claim that a use is covered by the fair-use exception.)

3. Use of smaller portions rather than larger portions--with the caveat that use of even small portions of a motion picture, video, sound recording, still image or other multimedia production has the potential to reveal the heart of the creative work that is protected.

4. Uses that enhance, or at least, do not degrade the market value of a copyrighted work.

These guidelines are often relatively clear with printed texts, even when the texts in question or the use in question is computer related. However, copyright case law concerning images (still and in motion) and sound recordings is still a highly volatile area.

"No agreement has been reached between producers and users as to what constitutes fair use of multimedia materials," Francis Poole, University Library, said.

In fact, because they are trying to set precedents in this new area of the law, the copyright holders for images, movies and music are often among the most aggressive in terms of enforcing their copyright in the digital age.