What is fair use?

The principles of fair use are in part a compromise between educational goals and protecting the rights of the creator. Section 107 of the Copyright Act contains a list of reasons on which the reproduction of a work may be considered to be in fair use. This section also sets out four factors to be considered in determining whether or not a particular use is fair: purpose; nature; amount; and effect (U.S. Copyright Office, 1999).

Purpose -The question being asked is "For what reason is the material Being used?" The courts basically give preference to non-profit educational uses, then other educational uses, and lastly to commercial uses. In other words, if the purpose of the use is commercial in nature, this would result in a negative ruling on the item of purpose. However, it is important to know that if the use if for educational purposes does not guarantee fair use (North Carolina State University, 2002).

Nature - The question being asked is "What type of work is it?" For instance, how factual (scholarly and technical) is the work as compared to being a creative work (e.g., poems & photographs) will influence this factor. The more factual the work is, or if there are only a present an idea will positively influence this factor for fair use (North Carolina State University, 2002).

Amount - The question being asked is "How much of the work is being used?" This item is the most commonly addressed in fair use guidelines. For example, exactly how much of a ten chapter book can one use before the use becomes unfair, or how much video from a 10 minute sequence can be used before the use becomes unfair. Also, if the portion of the work that is being used is the essence of the work, then using that portion may have the same effect as using the whole. The exact length of time will legally be dependent on the nature and purpose of that use, therefore, guidelines that give set amounts agreed upon by various organizations are not necessarily law, but merely agreed upon minimum limits (North Carolina State University, 2002).

Effect - The question being asked is "How does the use of that portion of the work effect the potential commercial market for the work?" This is one item that is clearly intended to protect commercial interests, however, since it must be taken into account under the context of the other three principles, commercial interests do not become the most important item. Still, if the use clearly reduces the potential market of the given work, then the use would not be considered fair with regard to effect (North Carolina State University, 2002).

In the end, each of these factors must be taken into account. Also, it is not an all or none, or is it a majority rule. Having three of the four items in favor of fair use does not necessarily mean that the courts would see the use as being fair. For example, if the use somehow completely eliminated the potential market for the work despite fitting into fair use parameters on the other three guidelines, it would not be fair use. All four are taken into account by the courts in determining fair use.

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 (U.S. Copyright Office, 1999).

KCC policy on fair use of copyrighted works

As an institution devoted to the creation, discovery, and dissemination of knowledge to serve the public, Kankakee Community College is committed to complying with all applicable laws regarding copyright. That commitment includes the full exercise of the rights accorded to users of copyrighted works under the "Fair-Use" provision of federal copyright law.

It therefore is the policy of KCC to facilitate the exercise in good faith of full Fair-Use rights by faculty and staff, in furtherance of their teaching, research, and service activities. To that end, KCC shall:

• inform and educate its faculty and staff about their Fair-Use rights and the application of the four factors for determining those rights set forth in 17 U.S.C. Section 107;
• develop and make available through the copyright committee, effective resources concerning Fair-Use and copyright laws generally and the application of Fair Use in specific situations; and
• avoid, whenever possible, adopting or supporting policies or agreements that would restrict Fair-Use rights.

Fair Use Checklist

Fair use frequently asked questions (FAQ)

Who is subject to this policy?

This policy applies to all faculty and staff of Kankakee Community College. While the policy does not address the activities of students who are not also employed by the university, the advice and guidance about fair use will be available to students as well.

Why not put explanations about fair use in the text of the college copyright and fair use policies?

Fair use is an area of the law that changes with court rulings, and that is adaptable to changing needs, technologies, and objectives. To put details into the policies regarding fair use during the time when it is in a state of continuous transition would led to ongoing revisions.

Who can help me with copyright decisions?

The college recognizes that innovativeinstruction give rise to the need for additional insight or support for rethinking fair use. For assistance with understanding or applying this policy, you may contact members of the copyright committee.

Who is responsible for making fair-use decisions?

The primary responsibility for decisions about fair use belongs to the individual with authority to oversee the relevant project or activity (e.g., faculty member regarding his/her content). Thus, if you are responsible for the activity or project, you are responsible for learning about the applicable fair use and reaching the appropriate conclusion.