Detail from “Fair Use Fundamentals” infographic ( (fairuseweek.org) designed by YIPPA, commissioned by ARL, and licensed under CC BY 4.0 (creativecommons.org/licenses/by/4.0/)
By Liz Hamilton, copyright librarian
Happy Fair Use/Fair Dealing Week! This international event, observed February 22-26, celebrates fair use (an exception under copyright law in the United States) and fair dealing (a similar provision in Canada and other countries). Northwestern University Libraries play an active role on campus helping our community navigate copyright doctrines. Join us for a workshop this Friday—or just read on for a quick primer to get the most of these important rights.
A fair use question that has come up frequently at the library in the last year is this: How much of a work can be used in online courses? Your first stop for this should always be Course Reserves — the library makes articles and book excerpts available for classes through Canvas under fair use. When excerpts go beyond a certain amount, the library will seek permission on your behalf and pay reasonable associated fees.
But what if you need a scan of something that you own but the library doesn’t have? Can you do it yourself under fair use? Maybe — fair use evaluations can be made by anyone! Let’s talk about how it works. (Note: none of what follows is legal advice; we can only provide information about the law to help you think through your own fair use decisions.)
Fair use is based on four factors, which need to be weighed together in making fair use evaluations. Tools like Columbia’s Fair Use Checklist can be used to think through each factor, and document your fair use decisions. What are the factors, and how do they apply to scanning for class?
The First Factor
The first factor of fair use is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This factor asks, why are you using the work? Purposes that favor fair use include teaching, research, and scholarship — all frequent purposes for scanning essential course materials. As an example, scanning a small portion of a book to help students grasp the subject of a day’s lecture may be a purpose that favors fair use.
Purposes that oppose fair use include commercial activity, entertainment, bad-faith behavior, and re-using the content as it was originally intended, like illegally downloading movies through a torrent instead of watching them through a legitimately licensed platform. As a counterexample, scanning your favorite piece of fiction for a biology class most likely wouldn’t favor fair use under this factor.
Keep in mind when evaluating the four factors that while you must consider each of them separately, all four factors must be looked at as a whole for your final fair use analysis. Just because one factor opposes fair use does not mean your use is not fair. Likewise, just because one factor favors fair use doesn’t mean you’re good to go. You have to consider them together.
The Second Factor
The second factor of fair use is “the nature of the copyrighted work.” This factor asks, what type of work are you using? Published work and nonfiction are types of work that favor fair use. Unpublished work, fiction, and creative work oppose fair use. Nonfiction favors fair use because it has what’s sometimes called a thinner copyright— because it’s mainly factual, there’s less creative expression there to protect.
Unpublished work has a slightly higher level of protection under fair use than published work because the author hasn’t yet chosen to distribute the work publicly, and the law wants to grant them greater rights to do so. However, the second factor tends to weigh a little less heavily than the other three. If the work you’re hoping to use is creative or unpublished, don’t fret: A fair use evaluation requires that you look at all four factors in making your decision.
The Third Factor
The third factor of fair use is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This factor asks, how much of the work are you using? Unfortunately, there’s no rule about what percentage of a work counts as fair use. Traditionally, smaller amounts favor fair use, as does use that is not the “heart of the work.” Larger amounts and portions that use the “heart of the work,” or its most central, well-known part, oppose fair use. However, it’s also important to consider whether the amount used is appropriate for your use.
In some cases you may need to use more of a work to make your point. For example, if you were discussing the composition of a painting in an art history class, you would probably need to show the entire piece, not just a small section of it. The fourth factor also may impact how much of a work you can use, as we’ll discuss below.
The Fourth Factor
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” This factor asks, is your use inhibiting the copyright holder’s ability to profit from their work? Here, fair use favors cases where there’s no significant effect on the market or potential market for the work; where the user owns a lawfully acquired copy of the original work; where one or a small number of copies are made; and where there’s a lack of licensing mechanism. For example, if a work is out of print and the rights holder can’t be reached, the fourth factor is more likely to favor fair use — and the amount that would qualify as fair use is more likely to increase.
Effects on the market that oppose fair use are cases where the use harms the market or potential for the work or its derivatives; where it could replace the sale of the copyrighted work; where affordable permission or licensing is available for the work; where the use makes the work available on the open web or publicly; where numerous copies are made; or where the use is repeated or done over a long period of time. As an example, if I scanned copies of a large portion of a book that my students could affordably obtain as an ebook, I would be negatively impacting the market for that work, which would oppose fair use under the fourth factor.
Tying It All Together
Once you’ve thought through each of the factors individually, it’s time to look at the use as a whole. Which factors favor fair use? Which oppose it? Do any factors stand out in particular — are you using a large amount of a work under the third factor, or is your use likely to impact the market for the work in a more serious way? If you find that the use as you originally conceived it is unlikely to be fair, you can reconsider the use. Maybe you can use less of the work to shift the third factor, or maybe a different reading will better suit your purpose under the first factor. Some uses will be more obviously fair than others. If you need help thinking through the process, you can always reach out to your Copyright Librarian (that’s me) to discuss your plans.
Want to learn more?
- Sign up for Friday’s workshop, Can I Use This? Copyright and Fair Use in Practice! Participants are encouraged to bring their own examples of material they want to use under fair use.
- Review the Fair Use section of the Copyright Basics Research Guide
- Check out the Fair Use/Fair Dealing Week website for events and resources put out by other institutions. Many of the events are virtual and open to the public.
- Email Copyright Librarian Liz Hamilton (emhamilton [at] northwestern.edu) to set up a consultation about any fair use or copyright-related conversations you may have.