When using work protected by copyright in one’s own curriculum or production or as an electronic or traditional reserve item, it is sometimes necessary to acquire permission from the copyright owner to use it. However, there are times when this may be unnecessary.

The Copyright Act of 1976 sets forth "Limitations on exclusive rights: Fair Use" when protected works can be used without permission from the copyright owner. The Fair Use provision is as follows:

Section 107 of the Copyright Act of 1976. 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 in 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          The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair use is one of the more complex and challenging aspects of copyright law. Every situation in which copyrighted material is used is different, and every circumstance needs to be analyzed on its own merits, to determine whether fair use applies.

In determining fair use, each and all of the above four factors must be considered: purpose, nature, amount and effect. A good-faith effort must be made to weigh and balance these, to conclude whether or not fair use can be applied.

Following is a brief explanation of the four factors.

Purpose

Non-profit, educational use is favored over copies made for commercial or entertainment purposes, or for monetary profit. Use in research, scholarship and news reporting is favored.

Nature

Factual works are more favored than fictional, or creative works. Published works are favored over unpublished works.

Amount

This is potentially the most confusing area. Small amounts or portions are favored over large amounts, large sections, or entire works. However, there are no statutory “amount used” formulas. In addition, if one takes the “heart of the work”, the quality, in addition to the quantity, of the amount used becomes a factor.

Effect

If the use of the copyrighted material has a significant negative effect on the sale, market, or potential profit to the copyright owner, then it weighs against fair use.

Fair use is hardly ever clear-cut, and different people might arrive at different conclusions for the same set of circumstances.

The Fair Use Checklist (http://www.copyright.iupui.edu/checklist.pdf)  by Kenneth D. Crews and Dwayne K. Buttler, at Indiana University, is one of the more helpful tools in helping one determine fair use.