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Open Access Publishing

Exercise Fair Use

What is fair use?

Fair Use is a provision within US Copyright Law (US Code Title 17, Section 107) that allows for certain uses of copyrighted material without the permission of, or payment to,  the rights holder. Fair Use is applied in situations where the benefit of a given use exceeds the economic harm to the copyright owner.  The statute names "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as favoring fair use, but other purposes, including those invoked by for-profit companies such as Google and the publisher Dorling Kindersley have also been found to qualify for fair use.

How do I qualify for fair use?

US Copyright law outlines four factors that must be evaluated to determine if a given use is "Fair:"

  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 to be used;
  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.

No one factor is to be overlooked in favor of the others; rather, they are to be evaluated in combination. If an evaluation determines that a use is likely not Fair, it is best to look to other limitations and exceptions with copyright law that might cover the use or, failing that, ask permission from the copyright owner.

How may I flex my fair use muscles?

  1. Each time you wish to use copyrighted material in your own work at Texas A&M, don't automatically assume it is or is not a Fair Use.  Evaluate each and every use according to the Four Factors. 
  2. Document your Fair Use evaluation as evidence of your good faith effort to follow the provisions of US Copyright law.   Should your evaluation not stand up to a challenge,  your demonstrated good faith effort to evaluate your intended use according to all Four Factors will make it more likely that a court would find, at worst, innocent infringement.
  3. Use one of the Fair Use Evaluation Tools included under "Related Resources"
  4. Be careful about relying on 'Fair Use Guidelines' to give you black and white boundaries around which uses are fair and and which are not.  As stated on the web site of the American Library Association, " fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help."  Fair Use guidelines are often too conservative in drawing lines between the do's and do nots; they often fail to reflect actual legal precedents that help hone our understanding of Fair Use over time; and they do not carry the force of law.

Related Resources