(Posted January 2006)
 

WHAT IS "FAIR USE"?

"Fair use" is an exception to the exclusive protection of copyright under American law. It permits certain limited uses without permission from the author or owner. Depending on the circumstances, copying may be considered "fair" for the purpose of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as "fair use": "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Keep in mind that, even in an educational setting, it is not "fair use" to copy for a "commercial motive" or to copy "systematically," that is, "where the aim is to substitute for subscription or purchase." No factor by itself will determine whether a particular use is "fair." All four factors must be weighed together in light of the circumstances. See the U.S. Copyright Office's Copyright Information Circulars and Form Letters for "Circular 21 -- Reproductions of Copyrighted Works by Educators and Librarians."

FOR CLASSROOM USE, HOW DOES "FAIR USE" APPLY?

The Internet magnifies the possibility for making an infinite number of perfect copies, which changes what it means to be "fair." Be careful when using material from the Internet; keep in mind the four factors of the "fair use" test, or get permission from the owner. The National Digital Library Program goes to great effort to identify possible copyright owners for items in American Memory, though it is often unable to ascertain possible rights holders because of the age of the materials. When the rights holder is known to the program, it will provide that information in the Restriction Statements accompanying the collections.