Brown University Copyright and Fair Use



Brown University

Principles of Fair Use
There are four factors that are taken into consideration in determining whether or not a use falls within the fair use exception. They are:

  • the purpose or character of the use:  The copyright law mentions several purposes appropriate to fair use: criticism, comment, news reporting, teaching, scholarship, or research.  Court decisions have tended to favor non-commercial purposes over commercial ones.  Transformative use, where the use adds new meaning or insight has been favored over simple reproduction. Not all educational uses are fair use.
  • the nature of the work being used: Courts have favored fair use of published materials over unpublished ones.  Fair use may apply more broadly to works that are more factual in nature. More protection may be given to works of a more creative nature: art, music, poetry, film.  Uses of consumables (tests, workbook pages) and works intended for the educational market (textbooks and literature anthologies) are less likely to be considered Fair Use.
  • the amount of the work being used, and its substantiality in relation to the whole: The larger portion of a work used, the less likely a use is to be considered Fair Use.  The amount one uses is likely to be evaluated both in terms of its relation to the whole work and the amount needed to achieve one’s purpose.  A qualitative analysis may also be performed to determine if the use has captured the essential or key portion of the work being used – if so, it is not likely Fair Use.  On the other hand, the use of the key portion or the entire work for purposes of parody may be entirely appropriate.
  • the effect of the intended use on the market: If your use is one where a copy (or copies) may be purchased or licensed for a fair market price it is not likely Fair Use.  If the use deprives the copyright owner of income or undermined a potential new market it is not Fair Use.

Each of these factors carries weight in deciding whether the use you plan is fair use. To assess how they balance out in your own situation, use the fair use checklist.

The above explanations draw on the articles “Measuring Fair Use: the Four Factors” and “What is Fair Use” at the Stanford Copyright & Fair Use website.  Other recent articles useful for more in-depth analysis of the Fair Use issue in Higher Ed. include  June M. Besak’s “Copyright: What A Use Fair?” Educause Review (Nov.-Dec., 2003) and Jonathan Band’s “Educational Fair Use Today” Association of Research Libraries (2007).