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Copyright and Using Materials in Your LMS: Fair Use

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Fair Use Resources

There are several resources available on the web to help you determine if the use of a material falls under Fair Use.  Here are a few that we find especially useful.

Fair Use in the Law

Section 107 of the Copyright Act permits the reproduction of copyrighted works when done for the purpose of criticism, comments, news reporting, teaching, scholarship and research and when the balance of four factors specified in the statute weighs in favor of a finding of fairness. The four factors of fair use as enumerated are as follows:

(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.  

No one factor is weighed more heavily than another, although courts, over time, have seemingly given more attention to one factor over the others. Further, the Copyright Act does not specify what quantity or quality of a work constitutes fair use; however, various non-profit and educational groups have adopted "rules of thumb" for fair use determinations (e.g. "rule of five" of the CONTU Guidelines). Remember, these "rules of thumb" do not guarantee a finding of fair use. Application of the factors is always the best practice.

When conducting a fair use evaluation, several inquires should be answered for each factor to aid in an overall determination of fairness. If the weight of the inquiries balances in favor of a finding of fair use, then reproduction may be made without permission.  The chart below highlights some of the inquiries that can be made when conducting a fair use analysis.

Four Factors of Fair Use

Purpose and Character of the Use

  • Educational or Commercial
  • Transformative or Reproduction
  • Spontaneous or  Repetitive

Amount & Substantiality of the Portion Used

  • Small amount vs. Larger quantity than needed to meet pedagogical objective
  • Selection is or is not considered “heart of the matter”

 

Nature of the Copyrighted Work

  • Technical or Artistic
  • Factual or Imaginative
  • Published or Unpublished

Effect of the Use on the Market

  • Alternative to students purchasing original work?
  • Ready market for the original?
  • Avoiding payment of royalties?

Copied from UF Copyright LibGuide