Fair use is a section of the Copyright Act that allows for the use of copyright-protected works in certain circumstances. The use of such materials for educational purposes typically falls under fair use. Fair use guidelines are intentionally vague, to allow space for new technologies and permit uses that may develop in the future.
There are four factors to consider when evaluating whether the use of a copyright-protected work falls under fair use:
1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
Nonprofit educational purposes are more likely to be fair use than commercial purposes; however, they are not automatically considered fair use based on this factor. In addition, “transformative” uses are more likely to be fair use – in this case, “transformative” uses add something new to the copyrighted work.
2. Nature of the copyrighted work
This factor looks at whether a work is published or unpublished, and whether it is factual or creative. The use of a factual work is more likely to be considered fair use than a creative or imaginative work. The use of a published work is more likely to be fair use than an unpublished work.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
The use of a small portion of the work copyrighted work is more likely to be fair use than a large portion of the work. It is best practice to use no more of the work than is necessary to accomplish a teaching objective – this is often referred to as the “Goldilocks rule”.
4. Effect of the use upon the potential market for the value of the copyrighted work
If the use of the copyrighted work infringes on the existing or future market for the work, it is less likely to be fair use. If the purpose of the proposed use is to substitute for purchasing the original, this will most likely count against fair use.