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What is Fair Use?

Fair use is an exception to the exclusive rights of copyright holders. As with most things related to copyright law, fair use is complicated, and there's no simple test to determine if a use is fair use. However, if you're familiar with the four statutory factors and the idea of transformativeness, you'll be able to make a well-informed, reasonable guess. We also recommend consulting with the library regarding fair use.

The Four Statutory Factors

No one of these factors is decisive. You have to consider all of them to make your best guess if something is fair use or not.

1. Purpose and Character of the Use

This factor relates to who is using the source and why. Generally speaking, education, scholarship, research, news reporting, criticism, and commentary favor fair use. Commercial and for-profit purposes are generally not fair use.

2. Nature of the Original Work

Generally speaking, borrowing from a factual work is more likely to be considered fair than borrowing from a creative work. This is because copyright does not protect facts and data. 

3. Amount and Substantiality of the Portion Used

Generally speaking, using a smaller amount of the source work is more likely to be fair use than using a larger amount. But remember that this amount is proportional, so two pages of an eight page essay is less likely to be considered fair use than two pages of a three-hundred page book. Substantiality is asking whether you're using something from the heart of the work, or something more peripheral. Generally speaking, the more peripheral the content, the more likely it is to be considered fair use.

4. Effect of the Use on the Potential Market For or Value of the Source Work

One simple way to think about this factor is to ask, is the use substituting for a sale the author would otherwise make? Though it is possible for a use to be fair even when causing market harm, the courts traditionally favor copyright holders where markets exist or are developing.

Transformativeness

Derivative works are considered transformative if they use a source work in completely new or unexpected ways. Parodies, new technologies, audio and video mixes and remixes have all been determined to be fair use by the courts.

(Information paraphrased from University of Minnesota Libraries' Copyright Services page: https://www.lib.umn.edu/copyright/fairuse)

What does this mean for me?

Faculty members who want to upload copyrighted materials on Blackboard for student use should follow the following guidelines.

  • Copyrighted material should only be accessible to students who are registered for the course, as well as other instructional staff who have access to the course.
  • The material in question must be used in support of curriculum-based instruction.
  • Proper attribution must be provided.
  • Limit the amount of a resource you post. You should not post more than one article per journal issue or one chapter per book. (See the statutory factors for more information on amount and substantiality.
  • Whenever possible, instead of uploading a document, link to online resources available through the library.
  • Don't make an entire video or audio recording available to students if they only need to watch/listen to part of the work.
  • Don't assume that because an image, document, audio or video recording is available online that it is not protected by copyright.
  • Please consult with the library to ensure you are not violating Fair Use guidelines.

For more information on Copyright and Fair Use, consult the library's subject page.