The Copyright Act gives the owner of a copyright the exclusive right to reproduce and distribute their work. One exception to this exclusive right is called "the fair use exception."
The fair use exception permits the reproduction of a portion of a copyrighted work without the copyright owner's permission, under certain circumstances.
This is an extremely important exception for education, as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship.
"Professor Eric Faden of Bucknell University provides this humorous, yet informative, review of copyright principle:"
There's no one right answer as to what constitutes a fair use of a particular copyrighted work. The answer varies from situation to situation.
Four factors are considered in all fair use evaluations. They are:
These four factors are not meant to be exclusive and must be examined together. The statute does not indicate how much weight is to be accorded each factor, therefore, it is advisable to treat the four factors equally.
For help in making a fair use evaluation, please see the links below. The Columbia checklist is a printable PDF, while the American Library Association's Evaluator walks you through creating a fair use document for your records. In the event of a lawsuit, having such a document may help you prove you made a good faith effort to comply with the fair use clause of U.S. Copyright Law.
Example Created by the Butler University Scholarly Communications Team. Used with Permission.
Using the American Library Association Fair Use Evaluator tool, I completed the following analysis using the language they provided and adding in additional information I felt was important. Please note that this document is offered as an example only.
Check out the full text of my evaluation here:
A stop light analogy:
A person can choose to drive through a green, yellow, or red light, but those pose different levels of risk.
Each person has a different appetite for risk in general, and it can change depending on context. Is it noon time or 3am? Are you driving alone in your own car or a bus load of children? While representing a university, and one that is not eager to deal with litigation, one might generally counsel pretty conservative Fair Use claims.
Any number of people could run a red light at 3am because they don't think anyone is around to catch them... similar to someone in academia digitizing a work out of print, knowing that there is not likely to be a publisher actively looking for violations, but that doesn't make it right. Digitizing only one chapter of a book, or 10%, whichever is less, and dissemination in a limited capacity to a single course is a "green light" rule of thumb. Unlike a green light in driving, it is not the law, but it is a safe and normal Fair Use claim to make.
Does that mean 2 chapters or 20% is a recipe for trouble? Maybe not. 20-50% might be yellow light, depending on the rest of the context. At some point though, it becomes really obvious that it is a red light.
Another factor is the importance/content that is being shared. Sharing a 5-page executive summary of a 100-page report might be minimal in terms of percent, but might represent the whole of the importance of the work. Another example of this in academia might be sharing short essays of criticism from modern authors in an anthology of works from authors in the public domain like Shakespeare or Martin Luther. The criticism might only be a couple of pages, but it might represent the only parts of the book that represent modern intellectual property… in that case, 10% of the text might represent more like 90% of the value and would be pretty risky in a Fair Use claim.
