Copyright Policy at Edgewood College: Fair Use

The concept of fair use is somewhat vague, and its application depends on the facts of the particular case. Fair use is a gray area that is not definitively described in either case or statutory law.

Common Myths

Many think "educational purposes" is a blanket defense that can excuse an educator from infringement of copyright law. This is not true. Even educators need to get permission to copy works that they intend to distribute in class.

Availability online does not make it part of the public domain. Internet materials are protected by copyright law.

Out-of-print books, depending on the date of publication (see the public domain chart), may also be protected. Courts have viewed these instances as the copyright holder's only recourse to compensation for creation of the work, and it is particularly important to seek permission in these cases.

The fact that a work will be used for educational purposes will tip the scales toward fair use, but if distributing copies in class eliminates all the class members from the potential market, the scales may tip back.

In determining whether a particular use of a copyrighted work is permitted as fair use, the courts will evaluate the use in light of four factors.

"It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict."    [from: Stanford University: The 4 Factors]

1. The purpose and character of the use.
   • Are you using the work as a basis for parody or for criticism?  That would more likely be considered fair use.
   • Does your use of the original transform it, to add expression or meaning? Was value added to the original by creating new information or new insights? It can be difficult to determine what is transformative, and the degree of transformation. In general, the more transformative it is, the more likely to be fair use.
      
2. The nature of the copyrighted work.
   • Is the original work creative or factual? Is it published or unpublished?
   • Fair use is more likely to apply to factual published works. Creative or unpublished works probably require permission.
      
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
   • Are you taking a small or large portion of the original work?
   • A small part is more likely to be considered fair use, while a large amount would not be. Be careful about using a small part that is the "heart" of a work, such as the identifying musical phrase, or "giving away" the core of the work in a critique; these could be an infringement of copyright.
      
4. The effect of the use on the potential market or value of the copyrighted work.
   • Is your use likely to create a larger market for the original work?  That tends to fall under fair use.
   • Could your use of the work be a substitute for the original, causing the original owner to lose revenue?  That will require permission.