The Fair Use Doctrine (section 107 of U.S. Copyright law) is a part of the Copyright Act of 1976 and is based on a history of legal decisions that recognized that some unauthorized use of copyrighted materials were determined to be "fair uses."
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. It also sets out four factors to be considered in determining whether or not a particular use is fair:
For help determining if your use of copyrighted materials is a fair use, the ICOM library has created a checklist below. Please feel free to contact your librarian with questions or for help with the checklist, or obtain legal advice from the ICOM's General Counsel.
The Fair Use exception was added to the Copyright Act of 1976 as section 107 and was based on a history of judicial decisions that recognized that unauthorized use of copyrighted materials were "fair uses." The distinction between fair use and infringement may be unclear and is not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. This worksheet is offered as a tool to help you determine if your use of copyrighted content is likely to be considered to be a “fair use.”
Before you begin your fair use determination, ask yourself the following questions:
1. Is the work no longer protected by copyright?
2. Is the work in the public domain?
3. If the work is yours, did you retain the copyright ownership when signing the publication contract?
4. Is there a specific exception in the copyright law that covers my use? (Possibly section 108: Reproductions by libraries and archives?) (Note: The other educational exceptions in copyright law are not applicable to ICOM as we are a for-profit institution.)
5. Is there a license that covers my use? (This might include a Creative Commons license or the material might be licensed and available for use through the library.)
If your answer to the above questions was no, then you should proceed with your fair use evaluation, looking at the same four points listed above.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
None of these factors independently determine whether or not a use is likely to be considered fair use. In evaluating your use, you should evaluate the totality of the circumstances and consider all of the factors together. The Fair Use worksheet will help you balance these factors to determine if your use of copyrighted material weighs in favor of fair use. While valuable for your own documentation, this worksheet is not intended as legal advice, which can only be provided by ICOM's legal counsel.
FAIR USE WORKSHEET INSTRUCTIONS
Check all boxes that apply, and keep a copy of this form for your records. If you have questions, please contact the ICOM General Counsel or the ICOM Copyright Librarian.
Name: ______________________________________ Date:____________________________
Class or Project: _______________________________________________________________
Title of Copyrighted Work: _______________________________________________________
1. PURPOSE AND CHARACTER OF THE WORK
| LIKELY SUPPORTS FAIR USE | LIKELY DOES NOT SUPPORT FAIR USE |
|
☐ Educational |
☐ Commercial ☐ Profit-generating use |
2. NATURE OF THE COPYRIGHTED MATERIAL
| LIKELY SUPPORTS FAIR USE | LIKELY DOES NOT SUPPORT FAIR USE |
|
☐ Factual or nonfiction ☐ Published work |
☐ Creative or fiction ☐ Unpublished |
3. AMOUNT AND SUBSTANTIALITY OF MATERIAL USED IN RELATION TO THE WHOLE
| LIKELY SUPPORTS FAIR USE | LIKELY DOES NOT SUPPORT FAIR USE |
|
☐ Small amount (using only the amount necessary to accomplish the purpose) ☐Lower quality from original (ex. Lower resolution or bit rate photos, video, and audio) |
☐ Large portion or whole work |
4. EFFECT ON THE MARKET FOR THE ORIGINAL
| LIKELY SUPPORTS FAIR USE | LIKELY DOES NOT SUPPORT FAIR USE |
|
☐ No significant effect on the market or potential market for the original |
☐ Replaces sale of copyrighted work ☐ Made accessible on Web or to public |
CONCLUSION
The combined purpose and character of the use, nature of the copyrighted material, amount and substantiality of material used in relation to the whole and the effect on the market for the original
☐likely supports fair use or ☐likely does not support fair use.
Note: Should your use of copyrighted material not support fair use, you may still be able to locate and request permissions from the copyright holder. Remember too that as a for-profit institution, ICOM has a larger, legal target on its back and because of our for-profit status, we most likely would not be able to successfully defend against a copyright dispute.
This worksheet has been adapted from:
1. Cornell University's Checklist for conducting a Fair Use analysis before using copyrighted materials
2. Crews, Kenneth D. (2008) Fair Use Checklist. Columbia University Libraries Copyright Advisory Office.
3. Smith, Kevin; Macklin, Lisa A.; Gilliland, Anne. A Framework for Analyzing any Copyright Problem.
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