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Copyright laws give creators the right to be compensated for many uses of their works and the ability to control many of those uses. However, those rights are limited in time and scope in order to ensure that the public is able to access and reuse creative works in important ways.
You’ve already learned in Lesson 1 about how copyright protection expires after a set period of time and that some things like ideas or words and simple phrases do not have copyright protection.
Imagine if copyright law gave creators the ability to completely control all uses of their works forever. How could we learn or teach about something a creator won’t give us permission to reproduce? How could we report about a historic event that was only captured on video by one person who doesn’t like what we have to say about the event? Without limits on copyright, free speech, learning, creativity, and culture would soon grind to a halt.
One of the most important limits on copyright protection is called “fair use.” Fair use ensures that copyrighted works are still available to reuse for socially-valuable purposes such as teaching, news reporting, parody, or critical comment. These fair uses of copyrighted materials can be made without permission from the copyright owner.
In its most general sense, a fair use is a use of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize, or parody a copyrighted work. In practice, determining whether or not a particular re-use is “fair” involves making a judgement based on balancing the various aspects of the use that are more and less fair.
Each fair use decision requires thinking about all four of the factors and determining if, on balance, the specific use is more fair than not. Even the most knowledgeable and conscientious person making a fair use decision is really only deciding if the use is “likely to be fair” or “not likely to be fair.” The only way to get a definitive answer on whether a particular use is a fair use is to have that question resolved in federal court.
The best fair use decisions are made based on experience and familiarity with a wide variety of examples. While still building the knowledge and skills to make a full fair use analysis, you can begin to recognize some uses you feel confident qualify as fair.
Given what you’ve learned so far about fair use, consider the following examples:
You can probably see how each of these would be likely to qualify as a fair use. As a heuristic, or shortcut, for recognizing uses that are almost certainly fair, you could ask yourself the following questions:
If you can answer “no” to all these questions, you’ll probably be able to confidently rely on fair use. If you’re not sure that the answer to one of these is “no,” your use may still be fair. While you’re building experience doing a full fair use analysis, the University of Wisconsin–Madison Libraries can help you think through the details of your fair use decisions.
Contact Carrie Nelson, the Head of Scholarly Communications, with your questions or to schedule a consultation.
If you’re interested in really understanding how courts think about fair use, you can learn about some relevant court rulings. See this listing of Summaries of Fair Use Cases from Stanford University Libraries for more information.
When you’re ready to try doing a complete fair use analysis yourself, check out the Using Existing Works guide from the University of Minnesota Libraries to help you consider and balance each of the four factors of fair use.
I am writing a paper for a class and want to quote several lines from a research article as evidence for a point I’m making. (The article is protected by copyright and not associated with a Creative Commons license.) Should I be comfortable relying on fair use?
You have probably found yourself in this position at some time and included the quotation simply because you knew it was common practice and without thinking about copyright. In fact, this common practice relies on fair use.
Consider our heuristic for this example:
Based on this shortcut analysis, it makes sense that we’re comfortable relying on fair use in this case.
In addition to fair use, copyright law includes other exceptions, exemptions, and limitations in copyright. For example:
Copyright law places a high value on educational uses. The Classroom Use Exemption (17 U.S.C., Secion 110(1)) only applies in very limited situations, but where it does apply, it gives some pretty clear rights.
To qualify for this exemption, you must: be in a classroom (“or similar place devoted to instruction”): be there in person, engaged in face-to-face teaching activities, or be at a nonprofit educational institution.
If (and only if) you meet these conditions, the exemption gives both instructors and students broad rights to perform or display any works. That means instructors can play movies and music for their students, at any length (though not from illegitimate copies). Instructors can show students images, or original artworks. Students can perform arias, read poems, and act out scenes. And students and instructors can do all these things without seeking permission, without giving anyone payment, and without having to deal with the complications of fair use.
The Classroom Use Exemption does not apply outside the nonprofit, in-person, classroom teaching environment:
The Classroom Use Exemption also only authorizes performance or display. It does not apply to making or distributing copies (e.g., handing out readings in class).
Some of these uses not included in the classroom use exemption may be allowed under the TEACH Act (17 U.S.C., Section 110(2)) which addresses some online teaching exemptions. Because the TEACH Act is particularly technical and restrictive, it’s often easier to find a fair use exemption for these uses.
Copyright law prohibits people from communicating information in certain circumstances. How is this made consistent with the First Amendment rights to freedom of speech and freedom of the press?
In addition to the limits copyright law places on what people can communicate, it also includes several clear exceptions so that people will be able to use the information for socially-valuable purposes.
What’s an example of a time you could legally make or distribute a copy of something protected by copyright even without permission?
Legal reuse of copyrighted materials happens all the time. One example mentioned in this lesson is: using a few screen shots from movies in a presentation to demonstrate how the use of camera angles in film has changed over time.
What’s the only way to know for certain if a certain use of copyrighted material qualifies as a fair use?
The law includes guidance on how to determine whether or not a use is fair, but the only way to know for sure is to take the specific example to federal court for a ruling from judges. Even the most knowledgeable person making a fair use decision is really only deciding if the use is “likely to be fair” or “not likely to be fair.”