0.1 Fair use  (Page 2/6)

Fair Use is not a right such as the “right to vote” or “right to free speech.” Fair Use is a legal defense, for use when a person is accused of infringement. It means that the case is not settled based solely on whether there was an infringement, but on the judge’s consideration of the defendant’s Fair Use claim.

Thinking of Fair Use as a defense and not a right can make it seem like something to be very cautious with, or to use only when you are really certain it is fair. However, daily life and common uses of copyrighted works are rarely certain. The average person is allowed to make a Fair Use analysis and rely on it with a comfortable amount of certainty.

According to the first paragraph of §107, making copies “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research , is not an infringement of copyright.” If you are making one of these uses, and not making copies way in excess of what you actually need, then your uses are probably fair. (U.S. Copyright Office)

Uses such as “scholarship or research” do not have to be driven by your teachers or professors. You may, on your own, have pursued a long-term study of the lyrics of songs by the band “Nirvana”. For your own research, you may copy the lyrics and interpretations available in music libraries or on the Internet. You may even copy articles other people have written about these lyrics. However, these copies should not be used for performance or a new publication (if copied entirely).

What are the Four Factors of Fair Use?

For most people, the “heart” of Fair Use lies in the four factors. The four factors are not a trial of balance (“Well, I’ve got 1 and 3 covered, so I can forget 2 and 4”). They are all to be considered when determining a Fair Use. If any one of the factors is abused, then the use is not fair. Some considerations for each factor are:

Purpose : Educational use weighs in favor of fair use and commercial use weighs against fair use.

Nature : Factual works are given less protection than creative works.

Amount : Generally, a large amount weighs against fair use, whereas a small amount would be considered fair use. There is no magic number or percentage

Market Effect : If the intended use would negatively impact sales of the work, then the use would generally weigh against fair use.

To apply the factors, you should take your situation and consider each factor. To help get a measure for each factor, assign each one a number from 1 to 5. If the factor is strong, give it a five. If the use just doesn’t qualify, give it a zero. Simply speaking, the closer the score is to 20, the stronger the action is to Fair Use. Nevertheless, interpreting each factor can be tricky.

Using the number system to score a use for “Fair Use” is not part of the law, and is not foolproof. It is simply a way to think about the strength of each of the four factors. It can help you make a decision, and sometimes not.

Here’s an example of a Fair Use debate. A High School teacher would like to post an article from Time Magazine on the bulletin board in the hallway by the door to her classroom. Students tend to gather there during longer breaks. The article is related to her subject, but not required reading. Is the posting a Fair Use?