What is “Fair Use” and why should I care?

Recently, there was an article in the New York Times (http://www.nytimes.com/2013/11/15/business/media/judge-sides-with-google-on-book-scanning-suit.html?hpw&rref=technology&_r=1&) about a recent case involving Google and the Authors Guild. In that case, the Authors Guild alleged that Google could not scan copies of their clients’ books because to do so violated copyright law. According to the article: “The ruling examined whether Google’s use of copyrighted works counted as so-called fair use under copyright law, which Judge Chin determined it did.” For those of us living and working in universities, this case is extremely important. Here’s why.

Fair use is an exemption within copyright law that potentially allows anyone to use copyrighted material without payment and without permission, subject to certain stipulations. In other words, every time you use a quotation in a paper. Every time you use an image in a PowerPoint presentation, and every time you rely on someone else’s idea in order to enhance and create your own ideas, you are relying on the “fair use” exemption.

Without fair use, universities, newspapers, TV programs, artists, and many others would have to ask permission for every time they have used another person’s idea. Without fair use, Google would have to pay someone every time a sentence from a website appears in search results. You would have to pay every time you quote someone’s work. Musicians would have to pay every time they re-mix an album. In other words, creative and intellectual exercises would be next to impossible. Fair use is incredibly important for universities, and this ruling was a resounding victory for fair use on many fronts.

Having said that, there are still many considerations you need to take into account before utilizing your fair use rights. In the case of an article, book, or dissertation, you should, whenever possible, attempt to find a copyright holder before reproducing an image. If you are using an image in a PowerPoint for an on-campus class, that would most likely be considered a fair use; yet, if you then used the same image in an online course or in a Massive Open Online Course (MOOC), it may not be a fair use. Similarly, if you used a variety of images in a mash-up video for an assignment, that would likely be considered a fair use. If you put that video up on YouTube for the world to see, it might not be considered a fair use.

How can you determine whether your use is “fair.” There is no easy answer. There are some questions you can ask yourself that may help, though.

1. Are you using the material for educational or non-profit  purposes?

• Generally educational purposes are viewed more favorably under fair use than are for-profit motives

2.  Is the use” transformative?”

• In other words are you creating something new or are you simply reproducing the material without adding anything to it? Generally creating something new is more likely to fall under fair use than reproducing material without adding to it?

3.  How much are you using?

• Are you using only portions of the book, video clip, or image? Generally utilizing less is viewed more favorably under fair use than using large portions of material.

4.  Is the work creative or purely factual?

• Generally the use of factual works is viewed more favorably than the use of creative works?

5. How will your use affect the market?

• If the copyright holder is financially harmed by your use of the material, than your use is unlikely to be viewed as a “fair use.”

You should definitely try to learn more about how to assert your fair use rights, and the library provides many resources for you to do so including:

A guide on copyright: http://guides.library.upenn.edu/copyright

A copyright clinic is held in the Weigle Information Commons, Rm. 125, every Tuesday from 3-4 pm, no appointment necessary.

Or, if you have other questions about fair use, copyright, and how it affects your work, please e-mail copyright@lists.upenn.edu