The “Fair Use” Doctrine

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

The TEACH Act  is the result of lengthy conversations and negotiations between representatives of the various stakeholders in the copyright arena.  The result is a compromise that no group is entirely happy with and, for many, it is too much trouble to implement. Remember, however, that “TEACH” is really just a shorthand way of referring to the current Section 110(2) of the Copyright Act.  Just as you may choose not to rely on fair use, you can also choose not to rely on TEACH.  A summary of the TEACH Act is provided in the “Digging Deeper” folder in the Module and the J. Murrey Atkins Library at UNC Charlotte has a good webpage dedicated to the TEACH Act. 

Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages. The only guidance for fair use is provided by a set of factors outlined in copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective.

For this reason, the fair use road map can be tricky to navigate.

Here are the “Four Factors” that judges will consider:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken,
  • and the effect of the use upon the potential market

How can you know if what you are using is protected under this doctrine? This is a link to the American Library Associations “Fair Use Evaluator” which allows you to actually evaluate the degree to which you are infringing on the copyrights of another. Follow this link and scroll through the Evaluator to see what it can do for you. BETTER YET … find something that you might want to use in a course you are teaching and have it evaluated! 

One of the BEST documents I have found, written FOR educators covering copyright and Fair Use is this document produced at Harvard University. The questions that are asked and answered in this document are really on point and I suggest that you read it through. You will also note that this document is copyrighted by Harvard University …. so, how did I get to include it in our course? I called Harvard’s Office of the General Council and spoke with the Deputy General Counsel and she granted me permission. I will now take the email she sent me and I will file it away in my course notes!