Fair Use Defined

The concept of fair use is much younger than the concept of copyrights. It was created to protect the legitimate interests of consumers and users from the totalitarian rights of copyright holders. It was specifically designed as a counterbalance to copyright in order to allow commentaries, parodies, personal backup, and other "fair uses." In this way, they were designed to protect legitimate interests of consumers and users. Section 107 of the copyright act of 1976 contains four factors to be considered in determining whether a use is fair or not. The factors are: 

1. The purpose and character of the use, including whether such use is of a 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; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

In addition to these, Section 110 outlines exemptions for certain displays and performances, typically for education or religious purposes. 

Note that not every use that falls under one of these factors is automatically freed from the constraints of copyrights. For example, if our Operating Systems class distributed large sections of Microsoft's code, even for educational purposes, it's likely that a judge would consider this to be infringement. Also, a small clip of a movie that shows the pivotal moments of the plot would likely be considered infrigement. The outcome is up to the judge's weight of the factors against the copyright owner's rights. Other myths concerning fair use can be found on Brad Templeton's page. 

Distance Education

Distance education courses, such as this internet class, raise several issues of fair use. In a traditional classroom, it is normally permissible to distribute copyrighted information for the purpose of education. When going beyond the confines of a single classroom, however, we begin to run into questions. Is it OK to transmit these ideas beyond a classroom? The House of Representatives report accompanying the 1976 copyright act says that it is, "as long as the instructor and pupils are in the same building or general area." But what about all of the outside users who are now capable of accessing the information directed toward the students? There are some good resources made available by the IHETS and the University of Texas. 

Electronic Reserves

Electronic reserves present another problem. When libraries subscribed to magazines, they were presented in a format that only allowed one patron to read an article at a time. Now, with electronic reserves, tens or even hundreds of library "patrons" can view an article at a time. Does this limit the copyright owner's right to publish and reproduce a work? Guidelines for Fair Use and Electronic Reserves list a number of conditions that must be met in order to allow copyrighted materials to be made available in this format. These conditions include password protection and limited access.