Fair Use

Fair use in teaching and research 

The 1976 Copyright Act provides important exceptions to the rights of the copyright holder that are specifically aimed at nonprofit educational uses of copyrighted works and libraries. Two provisions of the copyright statute are of particular importance to teachers and researchers: 

• a provision that codifies the doctrine of "fair use," under which limited copying of copyrighted works without the permission of the owner is allowed for certain teaching and research purposes; and

• provision that establishes special exemptions for the reproduction of copyrighted works by libraries and archives.

Four factors of fair use

Fair-use Statute Section 107 lists the following factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted fair use: 

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes, but not all educational uses are fair use.

• the nature of the copyrighted work -- reproducing a factual work is more likely to be fair use than a creative work such as a musical composition

• the amount and significance of the portion used in relation to the entire work -- reproducing smaller portions of a work is more likely to be fair use than large or essentials portions

• the impact of the use upon the potential market for or value of the copyrighted work -- uses which have no or little market impact are more likely to be fair than those that interfere with potential markets.

UC policies on photocopying and off-air recording

The University of California has two policies that provide guidance as to whether photocopying and recordings of television broadcasts are within the "fair use" doctrine. The Policy and Guidelines on the Reproduction of Copyrighted Materials for Educational Purposes addresses the appropriate use of photocopied materials in the classroom and for research. The Policy for Off-Air Recording of Broadcast Programming for Educational Purposes provides explicit guidance for recording television broadcasts, including retention, duplication, and extended use considerations. If photocopying or off-air recording activities are not within these two Guidelines, you shoud use caution and discretion in such copying or recording. All fair use guidelines should be considered minimum standards. Thus, just because a use is not within these guidelines, it is not necessarily outside the scope of fair use. If a proposed use falls outside the limits of these two guidelines, you should analyze the particular facts of your situation against the four factors of fair use in order to conclude that the copyright activity is permitted. If it is unclear whether a particular use is permitted under fair use or if it significantly deviates from the guidelines above, you should consider obtaining permission to use the work from the copyright owner. 

Guidelines on the use and limitations of fair use

With the adoption of the 1976 Copyright Act, representatives of author-publisher and educational organizations developed a set of guidelines that establish the minimum, but not necessarily the maximum, standards of fair use for photocopying of copyrighted work for use in the classroom. These standards were not incorporated into the Act and have not been formally adopted through court decisions, so they do not have the weight of law. Higher educational institutions thought the copying guidelines were not permissive enough. The University of California's Policy and Guidelines on the Reproduction of Copyrighted Materials for Educational Purposes is more permissive than the guidelines formally developed by the author-publisher and educational institutions.

There are no guidelines for fair use of copyrighted materials that one proposes to use outside the context of the classroom. Therefore, the four factors of fair use need to be evaluated, and, if necessary, a campus OTT Copyright Contact may be consulted for assistance in determining whether the contemplated use may be fair. The OTT Copyright Contact may not, however, provide advice to persons about fair use where the use will be personal.

Guidelines referenced in UC Policy:

• Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. March 1976.
  

  See UC Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research. Or the UC Policy QuickGuide

• Federal Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes. October 1981.
  

  See UC Policy for Off-Air Recording of Broadcast Programming for Educational Purposes. Or the UC Policy QuickGuide

Additional Fair Use Resources