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Open Education Resources: Fair Use of Copyrighted Material

Copyright Questions?

We're here to help!

This guide provides a basic primer about copyright and fair use for instruction.  If you have specific questions, please e-mail copyright@uic.edu.

Disclaimer

These pages were created to provide basic copyright information and are not a substitute for legal advice.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

— 17 U.S.C. § 107

Fair Use is. . .

A provision of the U.S. Copyright law, Section 107, that provides for the limited use or reproduction of copyrighted content without seeking permission from the rights holder. 

Fair use is appropriate for teaching, research, scholarship, criticism or commentary, but it may also be used when creating a news reports, blogs, mashups, presentations, art, and music.

However, fair use is not a blatant exception, i.e., all educational purposes might not be deemed fair use, and there are some commercial projects where it can be applied.

When determining whether or a use of copyrighted content is fair, it is important to weigh the four factors. 

Fair use is a section of the U.S. Copyright Act, but people are sometimes unsure of how to apply the four factors.  The Columbia University Copyright Advisory Office provides a comprehensive explanation of fair use and how to apply the four factors. 

Fair Use Tools and Resources

Fair Use Resources 

Copyright Quick Guide
Columbia University Copyright Advisory Office
 
Fair Use Defined
Columbia University Copyright Advisory Office
 
Fair Use Analysis (online tool)
Michael Brewer and the ALA Office for Information Technology Policy
 
Request Permission to use a copyrighted work
Columbia University Copyright Advisory Office
 
Register your work ©
 
Scholarly Communication @ UIC
University of Illinois at Chicago Library
 
Creative Commons Licensing
CreativeCommons.org

Fair Use Factors

Factor 1

Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Favoring Fair Use    Opposing Fair Use

Teaching, Research, Scholarship

Commercial activity

Criticism, Comment, News Reporting

Profiting from the use

Transformative or productive use                  
(changes the work for new utility)

Entertainment                                                     

Restricted access
(to students or other appropriate group)

Bad Faith Behavior

Parody

Denying credit to original author

Factor 2

Nature of the copyrighted work

Favoring Fair Use Opposing Fair Use

Published work

Unpublished work

Factual or nonfiction based

Highly creative work (art, music, novels, films, plays)

Important to meet favored educational objectives

Fiction

Factor 3

- Amount and substantiality of the portion used in relation to the copyrighted work as a whole

Favoring Fair Use    Opposing Fair Use

Small Quantity

Unpublished Work

Portion use is not central or significant

Portion used is central or “heart” of the work, .i.e.,
the best or most recognizable part                              

Amount is appropriate for favored educational purpose

Factor 4

Effect of the use upon the potential market for or value of the copyrighted work

Favoring Fair Use Opposing Fair Use

User owns lawfully purchased or acquired copy of original work

Could replace sale of copyrighted work, i.e., numerous copies made

One or few copies made

Significantly impairs market or potential market for copyrighted work or derivative

No significant effect on the market or potential market for copyrighted work

Reasonable available licensing mechanism for use of the copyrighted work

No similar product marketed by the copyright holder

Affordable permission available for using work

Lack of licensing mechanism, i.e., there is no platform available to license
or provide access to the content

Made accessible via Web or public forum