Copyright Exemptions Including Fair Use

The copyright law includes exemptions to copyright that limit the rights of the copyholder. An exemption allows a user to exercise a copyright (like the right to make a copy) without prior permission from the copyright holder under certain conditions. Exemptions like first sale (Sec. 109) and reproductions for libraries (Sec. 108) allow libraries to lend books, hold book sales, provide interlibrary loan service, preserve and replace materials, and make photocopies for library users. Fair use, the grandest exemption, allows users of copyrighted works the right to exercise without permission some of the rights normally exclusively reserved for the copyright holder.

Fair Use

The Fair Use Doctrine is arguably the most important limitation on the exclusive rights of the copyright holder. With fair use, one can exercise a copyright without authorization, without signing a license, and without paying a fee. It not only allows but also encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses - quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge - would be infringements. Fair use is the means for assuring a robust and vigorous exchange of copyrighted information.

Of course, fair use has its problems. There is never an immediate answer to the question, "is this a fair use?" One must make a fair use determination based on sound judgment and the careful consideration of the situation at hand, and that takes some time. Once you make a decision, it will still be a little murky. Individuals will disagree about whether a situation is fair, even when looking at the same facts.

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 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.

These four factors reflect early judicial efforts to balance the application of copyright law in ways that simultaneously allow uses of copyrighted works to serve the greater society while safeguarding the exclusive rights of copyright holders.

The U.S. Supreme Court has made clear that no "bright-line rules" determine whether a use is fair use. [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)] That determination rests in the four factors and how you apply them to your facts and circumstances.

One useful way to begin any fair-use analysis is to use the Checklist for Fair Use developed by Kenneth D. Crews, available from the Columbia University Copyright Advisory Office.

Information on this page is from: UW-Madison Libraries; Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, pp. 3, 6, 11; and Creative Commons Deed License 2004 American Library Association.