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About Fair Use

Tufts University has a policy on fair use of copyrighted materials. Go directly to the Fair Use Policy.

The "fair use" of a copyrighted work, including copying for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether any given "use" is "fair," a court is required to consider the four non-exclusive factors listed in Section 107 of the 1976 Copyright Act:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
The nature of the copyrighted work (is it an artistic masterpiece or merely a laborious compilation of readily available but voluminous data);
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.

A court is to balance all four factors "flexibly," is not to rely solely on any one factor, and may consider additional factors it deems appropriate. "Fair use" is intended to enable the court to be just and reasonable in the particular case before it. It is often difficult to predict the outcome of a dispute over "fair use."

What is fair use?
The doctrine of fair use, embedded in Section 107 of the Copyright Act of 1976, addresses the needs of scholars and students by mitigating the rights of copyright ownership. However, what constitutes fair use is expressed in the form of guidelines rather than explicit rules. To determine fair use, consider the following four factors [from What Educators Should Know About Copyright, by Virginia M. Helm; Bloomington, IN, Phi Delta Kappa Educational Foundation, 1986]:

The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. This factor at first seems reassuring; but unfortunately for educators, several courts have held that absence of financial gain is insufficient for a finding of fair use.
The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. For example, photocopies made of a newspaper or newsmagazine column are more likely to be considered a fair use than copies made of a musical score or a short story. Duplication of material originally developed for classroom consumption is less likely to be a fair use than is the duplication of materials prepared for public consumption. For example, a teacher who photocopies a workbook page or a textbook chapter is depriving the copyright owner of profits more directly than if copying one page from the daily paper.
The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of 1) the proportion of the larger work that is copied and used, and 2) the significance of the copied portion.
The effect of the use on the potential market of the copyrighted work. This factor is regarded as the most critical one in determining fair use, and it serves as the basic principle from which the other three factors are derived and to which they are related. If the reproduction of a copyrighted work reduces the potential market and sales and, therefore, the potential profits of the copyright owner, that use is unlikely to be found a fair use.

What are fair use guidelines?
In an effort to interpret the standards for fair use set forth in the copyright law, groups of publishers, authors, educators, organizations and associations have developed guidelines for dealing with specific types of material. Although some of these guidelines are widely accepted and referred to, and some are not, none of them have the force of law. There may be instances in which copying does not fall within the stated guidelines yet may be permitted under the criteria of fair use. The following guidelines are included here for informational purposes only.

Guidelines for Classroom Copying of Books and Periodicals
Guidelines for Fair Use of Educational Multimedia
Guidelines for Educational Uses of Music
Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes
Guidelines on Photocopying under Interlibrary Loan Agreements, from the National Commission on New Technological Uses of Copyright Works (CONTU)
Conference on Fair Use (CONFU)
Guidelines for Distance Learning, Electronic Reserves, Interlibrary Loan, Image Collections and Software were discussed but not finalized or agreed upon. They are included here for information only.
U.S.Copyright Office Report on Distance Education (PDF File)

Are the fair use "rules" the same for print & electronic version?
The fair use provision does not distinguish among media. It applies equally to all media. Nevertheless, publishers are considerably more concerned about abuse of fair use in the electronic environment because of the ease of electronic duplication and distribution.

All works on the web are protected by copyright just as print works would be, from the moment of their fixation in a tangible medium of expression. Thus, a user would need permission from the author to republish a work.

If an article is on the web and the library has a license, do I have to follow the fair use rules?
The libraries have negotiated database contracts that allow faculty to link to licensed journals on their course pages if the course pages are password protected and open only to authorized Tufts students, staff and faculty.

Are the fair use guidelines for newspaper articles the same as for journal articles?
Yes. See Guidelines for Classroom Copying of Books and Periodicals

How many drawings, illustrations, or graphs can be copied (digitally or in hard copy) for students in a class and still remain within the fair use criteria? Does it matter if I put them in a manual, pass them out in class, or just use them in a lecture?
This would be determined by looking at the fair use factors. No specific numbers can be given. Since this is a nonprofit educational use, the most important question is whether the drawings or illustrations are all from the same published work, or from different works. The fewer items you include from one work, the better. If the illustrations do not constitute a substantial portion of the work as a whole and do not affect the market for or value of the copyrighted work, this may be fair use. You may want to consult the Guidelines for Classroom Copying of Books and Periodicals which many consider to be "safe harbor" guidelines. These would allow passing out one copy to each student in a face-to-face classroom situation, on a one-time basis (not each semester). To determine fair use, one must consider all of the following four factors:

the purpose and character of the use;
the nature of the copyrighted work;
the amount, substantiality, or portion used; and
the effect of the use on the potential market

If you decide that copying the material falls within the criteria for fair use, your reprint should include any copyright notice contained in the original, as well as appropriate citations to the original source. If fair use does not apply, permission is needed. The fair use analysis would be the same for print or digital formats. See Question 1 in the Online Course

May an instructor make copies of slides checked out from the library?
The instructor should obtain permission from the copyright holder. The fair use of slides is somewhat narrower than the fair use of scholarly articles because several factors in the fair use analysis weigh against fair use when considering images. Slides are more creative and artistic than factual; they are entire works rather than parts of works. Thus, two of the first three factors weigh against fair use. The fourth factor will also weigh against fair use when the slides are readily available from a commercial source, as so many are.

Checklist for Fair Use
This checklist is beneficial for analyzing whether fair use can be invoked. It was prepared
by the Copyright Information Center at Cornell University.