Can you explain - succinctly and without jargon, please - what fair use is?
Fair use is an exception to copyright that permits unauthorized use in cases where where the value of the use to society is greater than the harm done to the rightholder.
How does it work?
Fair use is analyzed based on striking a balance of four factors:
- the purpose and character of your use,
- the nature of the work,
- the amount and substantiality of your use
- the effect of your use on the market for the original
Said differently, fair use is about what you are doing, what you are using, how much you are using, and if your use undermines the value of the original. It's not a checklist where you must "check off" all four, nor is it a vote where the majority rules. Fair use is about looking at the specific facts and striking a balance that adds value to the marketplace of ideas.
How can I make the "purpose and character" of my use more likely to be fair?
Nonprofit and educational use is generally more likely to be fair, which is good news for us at NCSU. Use that is transformative - that makes something new and different - is more likely to be fair that work that simply reuses the original. Making your use educational, non-commercial and using the original to create something new all make your us more likely to be fair.
What types of work are more likely to be used fairly?
Generally the more widely available a work is the more likely you are to be able to use it fairly. Published work and work that describes facts about the world are more likely to be used fairly while unpublished and creative works are less likely to be used fairly.
How can I make the "amount and substantiality" of my use more likely to be fair?
Unsurprisingly the more of a work you use the less likely your use is to be fair. It is important to understand that this is considered in terms of both quantity and quality. Using the heart - or most important part - of a work also makes your use less likely to be fair.
What can I do to minimize market harm and make my use more likely to be fair?
This question can be a bit more complex, but it is helpful to ask yourself if your use could be used as a substitute for the original. If someone seeking the original could use the portion of the original that you included in your work instead, your use is less likely to be fair.
Does the fact that my use is educational and non-commercial automatically make it fair use?
Although educational and non-commercial use helps a fair use argument it does not decide the issue. All four factors must be considered and there are many educational and non-commercial uses that do not qualify as fair use.
Does the fact that I work in academia make my use more likely to be fair?
Not necessarily. Fair use is about what you are doing, not who you are.
Fair use sounds uncertain, why not just assume I need permission?
Aside from the fact that permission often requires you to pay to use a work, there are important legal reasons to assert your fair use rights. The special culture of higher education relies heavily on the flexibility of fair use; it would be difficult to promote the free exchange of ideas at the heart of academia without exercising our fair use rights. Further, because fair use analysis is based in part on established norms in the academic community fair use is like a muscle: if not used, it will atrophy. Asserting your fair use rights helps you do the good work of an educator and scholar, but it also supports legal protections necessary for the academic and scholarly enterprise as a whole.
Does it matter if I act in good faith?
Acting in good faith is vital for proper application of fair use, particularly in academia where we are given special protections when we do so. Making a good faith effort to identify rightsholders, to understand fair use, and to document your fair use analysis with a tool such as the Fair Use Checklist makes your use more likely to be fair, reduces the negative consequences of incorrectly acting on a belief your use is fair, and may even make a rightsholder less likely to act aggressively.
This is really complicated. Will you just tell me if my specific use is fair or not?
Sure. You can always contact the Center and we're happy to walk you through these issues and answer specific questions. It's important to understand, however, that fair use rarely provides definitive answers. A use may be likely or unlikely to be fair, but until a court actually rules on a specific issue there can not be 100% certainty.