‘Fair’ Use
Fair Use is the phrase for a collective set of exemptions allowing the use of copyrighted works without the permission of the rights holder, or the payment of licensing fees. Fair Use exemptions were codified to allow for limited use in cases where the value of the use outweighs the value to the rights holder. Examples of fair use include use of a work for commentary purposes, educational uses, limited transformational cases, some archival needs, certain parody uses, and so on. Qualifications for Fair Use come under a four-factor test:
- The purpose and nature of the use of the copied material
- The nature of the original work
- The quantity and substance of the copied material
- The effect on the value of the original work
If all of this sounds vague, that’s because it is. There is no clear definition as to what qualifies as fair use. Most people agree that copying an entire work is not fair use, even if you are using the copies for educational purposes. Other than that, it’s hard to say how much you can use, where and how you can use it, etc. Most of the four factor test comes down to a certain measure of common sense: Why am I using this work? Can I use a different work instead? How many people am I sharing this with, and to what purpose? Am I costing the rightsholder any sales, or diminishing the brand or value of the work?
No one has yet come up with a concrete definition of Fair Use. There are lots of resources to help you decide if what you are doing is justified. There’s this checklist that will help you document your case for fair use. And there’s also more specific resources, like this code of best practices for use of video material. As always, when in doubt, talk to your librarian, as they are often the local expert on this. You might also talk to your local Intsructional Technologist or even your Academic Lawyer.
