Fair Use

The Copyright Act generally protects the author or owner of a work’s exclusive right to publish, distribute or perform the work. This general protection is subject to several exceptions, among them the Fair Use doctrine, codified at Section 107 of the Act. The Fair Use doctrine provides that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified [in Sections 106 and 106A of the Copyright Act], for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Though it lists the purposes for which one may make fair use of copyrighted materials, the statute does not give us much of a definition of fair use. Instead, we are given four factors to consider in judging whether a particular use of copyrighted materials is fair:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Since the rule is stated so vaguely, it is understandable that there is much confusion. Publishers seek to limit fair use to the absolute minimum, in order to stimulate sales of published materials and maximize profits. But it is the courts and not the publishers that flesh these four factors out. Though the statute is somewhat murky, it is worth noting that its inclusion in the Copyright Act of 1976 did not establish a new rule. In fact, the doctrine had already long existed as a judicial limitation on copyright, and was therefore understood by the legal system. There have emerged some points that help us navigate.

Movies in the classroom

One of the most common fair use questions has to do with the use of movies, television shows, or other recorded performances in the classroom. Most of the time, instructors obtain such recordings by renting or purchasing them in VHS or DVD form at a local store or other retailer such as Amazon.com, or by downloading them from online sources such as Amazon.com or iTunes. A work obtained in these ways usually carries with it a license, or permission to use the work, that extends by its terms only to viewing the work in private homes. However, it is considered a fair use of such works to display them in a face-to face classroom setting when all of the following conditions are met:

1. The work was lawfully obtained (e.g., not illegally copied)
2. The work is displayed in the classroom
3. Viewing the work is a part of the course content of a for-credit course, and is required of students in the course; and
4. Display of the work is limited to students who are signed up and receiving credit for the course.

Therefore, it is fair use of a movie to show it in class to students who are members of that class and who are physically present, but it is not fair use (and therefore usually constitutes infringement) to show the movie to persons not receiving credit for a particular class, such as persons attending a film festival. This is true regardless of whether admission is charged. Movie distributors generally make available (at higher cost) for rent copies of movies that carry broader licenses, and may be shown to groups in a more public setting.

Copying printed materials

In 1976, an ad hoc committee composed of representatives of educational groups and publisher associations wrote a set of mutually agreeable guidelines that, though they do not carry the force of law, are nevertheless quite helpful in determining whether the copying an distribution of copyrighted materials in a classroom setting falls with the fair use rule. Unfortunately, the guidelines themselves are complex in their own right, but they at least establish some boundaries as to what might, in good faith, be considered fair use.

Last updated: 11/11/2020