On April 5, 2021, the Supreme Court handed down its much-anticipated decision in one of the most consequential copyright cases of our time, Google v. Oracle. In ruling that fair use permitted Google to incorporate elements of the Java API into its software for the Android phone, the Court clarified standards not only for fair use as applied to software but also arguably for other copyrighted works as well. Profs will lead our assessment of this momentous decision. Peter Menell and Pamela Samuelson. In addition to filing amicus briefs in the case, they have written extensively about it and the broader issues of software copyright. They will be joined by Supreme Court advocate Tom Goldstein, who argued the case for Google, and by Prof. Sean O’Connor of the Antonin Scalia Law School at George Mason University.
About Fair Use
Fair use may not be what you expect. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?
To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision, Section 107 of the U.S. Copyright Act and they have been examined and developed in judicial decisions. The following summaries identify and explain the significance of the factors as they relate to many university needs.
Fair Use is a Balancing Test
To determine whether a use is or is not a fair use, always keep in mind that you need to apply all four factors. For example, do not jump to a conclusion based simply on whether your use is educational or commercial. You still need to evaluate, apply, and weigh in the balance the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work. This flexible approach to fair use is critical in order for the law to adapt to changing technologies and to meet innovative needs of higher education. Not all factors need to weigh either for or against fair use, but overall the factors will usually lean one direction or the other. Also, the relative importance of the factors is not always the same. Your analysis should guide you to a conclusion.
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use.
Courts also favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
Factor 2: The Nature of the Copyrighted Work
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The “amount” of a work is also measured in qualitative terms.
Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.” On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price. “Effect” is also closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.
Content retrieved from This page is licensed by a Creative Commons Attribution License with attribution to its author Dr. Kenneth D. Crews (formerly of Columbia University).
Fair Use Checklist
A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project. Keep completed checklists on file for future reference.
As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.
Caveat
This checklist is provided as a tool to assist you when undertaking a fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.
Fair Use Checklist
Here is a PDF of the Fair Use Checklist for your own use.
Tools
Fair Use Reasoning Tool Worksheet
Use the Fair Use Reasoning Tool worksheet to help guide your reasoning as to whether using copyrighted material could be considered fair use. You can use this to evaluate projects or plan your own.
Digital Copyright Slider
Created by Michael Brewer and the American Library Association Office for Information Technology Policy, Copyright Advisory Committee. The scale applies to works published in the U.S.
To use the slider, click here
Fair Use Evaluator
http://librarycopyright.net/resources/fairuse/index.php
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Codes of Best Practices
Copyright concerns fundamentally affect the creative choices media makers believe they can make. As part of its mission to provide educational support to creatives in media that matters, CMSI develops tools to better understand how to employ fair use, the right to use copyrighted material without permission or payment, under some circumstances. Filmmakers, journalists, teachers, visual arts professionals, librarians, archivists and more all have collaborated with CMSI to clarify how fair use works with their most common practices.
About Fair Use
