Copyright Basics: Fair Use

Wealth of Ideas Newsletter, January 2005

It is common knowledge that copyright law gives certain rights to the copyright holder for a certain amount of time. However, U.S. copyright law was actually designed to protect the public’s access to a work just as much as the author’s monopoly on it.

A copyright can be defined as the grant of a limited monopoly in a specific presentation of recorded knowledge; the monopoly is limited in both duration and in scope. The laws governing the public’s use of copyrighted material are commonly known as “fair use” laws, and protect the use of such material for the purposes of education, research or the free exchange of ideas.

Fair use is determined on a case-by-case basis, and is governed by four factors:

1. Purpose – Is the use of the work for educational/informative purposes, or merely commercial?
2. The nature of the work that makes use of the copyrighted material – is it creative, derivative, or a compilation?
3. The amount of the copyrighted work used in relation to the work as a whole – This is a major factor in determining whether the use is a permissable "fair use."
4. The effect on the market or potential market – Will the reproduction of the copyrighted work affect the copyright holder’s ability to sell it? For instance, in the majority of instances it is a violation of fair use to copy an entire book (see factor #3, above). However, in the case of a book that is out of print and unavailable, but still under copyright, photocopying the book in its entirety for personal reference or educational use would be a fair use because it would not affect the author’s ability to sell the book.

Fair use questions arise commonly in academic settings, where students and professors alike wish to copy or reference passages of copyrighted works for educational purposes. And since the copyright law is designed to promote the dissemination of information, the vast majority of educational uses of copyrighted information are considered fair use. However, there are restrictions – for example, a professor wishing to post copyrighted information on a website for his or her students’ use should restrict access to that information by requiring a password.

Fair use issues may also arise, for example, when a reviewer wishes to critique a book, movie, or music CD and uses an excerpt from that work in the review. A book review that is printed in a for-profit newspaper might be seen as a commercial use, and if the review is negative, one might think that this would affect the marketability of the book – thereby violating the fair use laws in factors 1 and 4. Such use is overwhelmingly allowed, however, because the amount of the work reproduced in the review is usually negligible in relation to the whole work, and bad reviews don’t necessarily translate into a financial loss.

In light of the complexity of determining fair use, anyone with a potential fair use issue should either clear that use with the copyright holder or consult an attorney who specializes in copyright law.