Fair Use & Reserves
Fair use is an exemption within copyright law that allows for the use of copyrighted materials without obtaining permission, provided the use is fair. A determination of fair use rests upon a four factor analysis, and the goal of the analysis is to balance the rights of the copyright owner with the rights of the public to use portions of copyrighted materials for education, commentary or criticism. The fair use exemption is technologically neutral, so the same four factor analysis should be applied regardless of the medium.
While the only way to definitively determine whether a use is fair is to have it resolved in federal court, it is important to understand fair use and the four factor analysis used to determine whether a use is fair. If someone claims copyright infringement, the court can reduce the amount of money damages if the alleged infringer can show an understanding of the fair use analysis and that they made a good faith determination that the use was fair.
Section 107 of Title 17 of the United States Code states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Factor 1: Purpose
The purpose of the use refers to whether the use is for an educational purpose, such as teaching or research, or whether the purpose is for a commercial activity. Another consideration is whether the use is transformative, whether the use changes the original work to serve a new purpose. Educational uses and transformative uses weigh more favorably toward fair use.
When applying fair use for electronic reserves, the purpose of the use should be educational. As such, the posting of e-reserve material should be at the request of the instructor, and the material should either be required or optional reading for the class.
Factor 2: Nature
The nature of the copyrighted work refers to whether a work is artistic and creative or whether it is factual in nature. A factual work weighs more favorably toward fair use than an artistic and creative work.
Additionally, this factor takes into consideration whether the work in question has been published or is unpublished. An unpublished work weighs less favorably toward fair use, as one of the exclusive rights granted to copyright holders is the right to determine when their work is first published.
Both creative and factual materials are included in e-reserves, accordingly faculty and library staff should take the nature of the work into consideration when applying fair use to e-reserves.
Factor 3: Amount
When determining the amount of the use one should perform both a quantitative and a qualitative analysis. The smaller the portion used, the more likely the use would be considered a fair use. However, even a very small portion of a work may not be considered a fair use if it were the “heart of the work,” or the most memorable aspect of the work.
Another important consideration in the third factor is whether the amount of the use is appropriate for a favored educational purpose. For example, in a nonprofit educational setting, the copying of an entire journal article for students in a class would likely be a fair use, but the same copying by a commercial copy shop would require permission.
With regard to e-reserves, only those portions of the work relevant to the educational objectives of the course should be posted to e-reserves. Such material should generally be limited to briefs excerpts of works. However, faculty and library staff may also consider whether the amount is appropriate for educational objective of the course.
Factor 4: Effect
The fourth factor considers whether, if the use of a work were widespread, it would deprive the copyright owner of income or negatively impact the market or potential market for the original work. Consequently, the more restricted the use, the less of an impact there will likely be on the market or potential market for the original work.
The fourth factor is also linked to the purpose of the use because a negative impact on the market is often presumed if a use is for a commercial purpose. However, if the use is for an educational purpose or is transformative, then a negative impact on the market will be more difficult to prove. The use of some works, like workbooks or educational videos, is rarely found to be fair because such works are produced specifically for the educational market.
The Emory Libraries limit access to e-reserves to only the students, faculty and staff of Emory University. Only those students registered for a specific course will have access to the e-reserve materials for that course. Additionally, the Libraries terminate student access at the end of a given semester in order to help ensure limited impact on the market. The Libraries do not supply copies of materials outside of the context of a course that is active for the current semester, nor does library staff provide copies of files directly to students or faculty on disk, by electronic transfer, or by any other medium. It is the responsibility of every user of the e-reserves system to comply with the spirit of the fair use exception by only using documents or materials posted in the system for personal, academic use.
For help in determining whether your use of a work is fair use, please contact the Reserves Team .