Sec. 107. - Limitations on exclusive rights: Fair use

"...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

What factors should the creator of a new work, that borrows material from a copyrighted work, look at in order to determine if the use is fair?

1. First of all, what is the purpose of your use of the copyrighted work?

Your analysis should include examining whether you plan to use the material in a commercial or noncommercial manner. Is your intention to make a profit or is it purely a nonprofit educational use?

2. What is the nature of the copyrighted material?

Is your use fact-based or created imaginatively? Is the work published or non-published? If the work is factual, then the work is not copyrightable (ex. maps). Ideas can not be copyrighted either, only expression.

3. How much of the original work do you plan to use in relation to the complete copyrighted work?

Are you going to use a small portion of the work or are you planning on using most if not all of it? If you are taken to court over a copyright issue, the courts are more likely to weigh this factor in your favor. If you use a small portion, you should be ok. How much is a small portion?

4. What is the effect of the use on the marketability and value of the original copyrighted work?

Is it possible to obtain permission from the copyright holder? For example, is the copyright holder recognizable and determinable? Will your use negatively effect the sales of the original copyrighted work? Will your new work harm the market for the original works? Will your new work impair the market for derivative works? Is there a market for permission? Will your use of the copyrighted work actually increase sales of the original?

In 1976, the Copyright Act was created and included what is known as the "common law doctrine of fair use." At that time, educational associations and commercial publishers also created a set of guidelines on photocopying. These rules stipulate a minimum level of copying which qualify under "fair use." This created a so-called "safe harbor" for photocopying. However, there have been notable exceptions of this from copyright holders who refuse to acknowledge these guidelines. It is important to note that the actual guidelines do not provide protection, only statutes such as the Copyright Act of 1976 deliver protection for fair use. The courts look at guidelines as a reference and not as a rule.

1. Faculty members are allowed to make single copies for instruction and research. This includes:

a. a chapter from a book;
b. an article from a journal, periodical, or newspaper;
c. a short story, essay, or poem;
d. a diagram or picture in any of those works.

2. Faculty members can also make multiple copies for single distribution in class to students. This is true if the faculty creates:

a. only one copy for each student; and
b. includes the notice of copyright; and
c. uses only limited amounts of poetry, prose, and illustrations; and
d. there is no charge to the student beyond the cost of the photocopying.


These rights granted to faculty members can be increased if the copying has little to no consequential ramifications upon the marketability of the original copyrighted work and/or there is little or no time to secure permission from the copyright holder. Permissions should be obtained from copyright holders if the use is repeated multiple times, if the photocopying is for commercial use, or if the use is for course packs, or consumable works within the classroom (workbooks, exercises, tests, etc.). Unpublished works are also copyrighted by law from the time they are recorded (pen, cd, typewriter, etc.) until they become published. Educational professionals should remember that not everything is copyrighted and that receiving permission is not as difficult as it may sound. If confused you should ask university counsel whether your desired use qualifies under fair use.

For more information on using copyrighted materials in a digital context, go to Copyright in an Electronic Environment. This site has very clear and concise guidelines and is hosted by the North Carolina State Board of Education. These rules were created from the Guidelines from Consortium of College & University Media Centers.