Open Educational Resources (OER)

What is Fair Use?

Fair use is an exception to the exclusive protection of copyright under American law. It permits certain limited uses without permission from the author or owner. The law's Fair Use Doctrine addresses educators' need to make copies and share copies of materials with their students. Use the four-factor test to determine fair use of a copyrighted work. Depending on the circumstances, copying may be considered "fair" for purposes such as teaching (including multiple copies for classroom use), scholarship, or research.

To determine whether a specific use under one of these categories is "fair," courts are required to consider the following factors:

1. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole (is it long or short in length, that is, are you copying the entire work, as you might with an image, or just part as you might with a long novel);
4. Effect of the use upon the potential market for or value of the copyrighted work.

A recent trend in the courts considers the concept of transformativeness.  If your use significantly transforms the work (such as use for criticism, scholarship, or parody), or the purpose of the work (such as social work students examining a workbook actually intended in the general market for patient/client use), this transformativeness will likely affect the fair use argument favorably.

It is important to remember that all four factors must be considered together; no single factor controls the strength of the argument.  In using copyrighted work in your courses, you will often be able to claim a fair purpose (i.e., teaching, scholarship, criticism), but you still must consider the nature of the work, the amount you intend to use, and the effect on the potential market for the copyrighted work. It is always a good idea to document your consideration of the four Fair Use factors at the time of your use of the work and retain for your records; doing so demonstrates your good faith effort to comply with copyright law.

The Fair Use Doctrine is outlined in Title 17, Chapter 1, Sections 107 and 108 of the U.S. Code. It explains four factors to determine if a use is fair. You must weigh each of these factors, no single factor is decisive. The ALA's fair use analysis tool will assist you with weighing the factors and will email you your choices so you'll have a record.

Good Practices for Fair Use Amounts

• A chapter from a book (never copy entire books).
• An article from a periodical or newspaper.
• A short story, essay or poem
• A chart, drawing, picture.

*Remember, the Fair Use Doctrine does not cover you if you take the "heart" of the work.

In general, fair use arguments can be made when limited amounts of copyrighted material are used for educational purposes, the audience for which is limited to students enrolled in a particular class (by providing access to the materials in a password-protected environment, such as Moodle), and offered in formats that are not susceptible to further copying/downloading.

Providing links to online materials (rather than copying them) and favoring streaming versions (rather than a downloadable format) of audiovisual material is also a safe call because no copies are being made.

Obtaining Permission

To obtain permission to use a copyrighted work, the copyright holder must be contacted. You can do this yourself or you can pay the Copyright Clearance Center, Inc. to obtain it for you. 

Here are some resources on how to determine if a work is protected by copyright and how to identify who the rights holder is. 

Fair Use Resources