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 Copyright and Fair Use

 

A Guide for the Harvard Community


CONTENTS

Basics of Copyright

Fair Use of Copyrighted Material Copyright and Permissions at Harvard

Copyright © 2007 President and Fellows of Harvard College

 

 

Fair Use of Copyrighted Material
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What is "fair use"?

Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works. Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment.

What is the test for fair use?

The fair use defense is now codified in Section 107 of the Copyright Act. The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts. The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright. To determine whether a given use is fair use, the statute directs, one must consider the following four factors:

  • the purpose and character of the use, including whether the 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.

These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine. The following questions consider each of these four factors in turn.

What considerations are relevant in applying the first fair use factor—the purpose and character of the use?

One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research. Other important considerations are whether the use is commercial or noncommercial and whether the use is “transformative.”

Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit making.

In recent years, the courts have focused increasingly on whether the use in question is “transformative.” A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use. A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts. To quote the Supreme Court again, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”

Courts have also recognized, however, that non-transformative uses may be socially beneficial, and that a use does not have to be transformative to support a finding of fair use. The Supreme Court has cited reproduction of multiple copies for classroom distribution as the most obvious example of a non-transformative use that may be permitted as fair use in appropriate circumstances. The Court’s emphasis on whether a use is transformative, however, makes it difficult to know how to weigh uses that are for non-profit educational purposes but are also non-transformative. In addition, it could be argued in some circumstances that verbatim copying of a work for classroom use is “transformative,” in that (to quote from the Court’s definition) the instructor is adding “something new, with a further purpose or different character, altering the first with new expression, meaning or message” in the course of presenting the material.

Other factors that sometimes weigh in the analysis of the first fair use factor include whether the use in question is a reasonable and customary practice and whether the putative fair user has acted in bad faith or denied credit to the author of the copyrighted work.

What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?

Whether the work is published or unpublished, and how creative the work is, are the two main considerations. Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public. The fact that a previously published work is out of print may tend to favor fair use, since the work is not otherwise available.

Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works. This is in keeping with the general principle that copyright protects expression rather than ideas or facts.

What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?

Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used. What percentage of the original work has been used? There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use.

Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use. Thus, for example, in a case in which The Nation magazine published excerpts, totaling only 300–400 words of verbatim quotes, from Gerald Ford’s forthcoming book-length memoirs, the Supreme Court held that the third factor weighed against fair use, because the excerpts included Ford’s discussion of his pardon of Nixon and other central passages that the court found to be the “heart” of the work.

Also important in applying the third factor is the nexus between the purpose of the fair use and the portion of the copyrighted work taken. The extent of permissible copying varies with the purpose and character of the use. Taking more of the copyrighted work than is necessary to accomplish the fair user’s salutary purpose will weigh against fair use. In some cases, the fact that the entire work—for example, an image—was needed to accomplish the fair use purpose has led the court to hold that the third factor was neutral, favoring neither the copyright holder nor the putative fair user.

What considerations are relevant in applying the fourth fair use factor—the effect upon the potential market for or value of the copyrighted work?

Use that adversely affects the market for the copyrighted work is less likely to be a fair use. This ties back to the first factor, and the question whether the putative fair use supplants or substitutes for the copyrighted work. The fact that a use results in lost sales to the copyright owner will weigh against fair use. Moreover, courts have instructed that one must look at the likely impact on the market should the use in question become widespread; the fourth factor may weigh against fair use even if little market harm has yet occurred.

This inquiry is not confined to the market for the original, but also takes into account derivative markets. For example, if a novel were made into a movie, the movie might not harm sales of the book—indeed, it might help them—but the harm to the derivative market for movie rights would count against fair use. This principle works in a straightforward way in the case of well-established markets, like the market for movie rights for a novel. But it becomes much more difficult to apply if there is not an established market. Consistent with the statutory language, courts have also looked at whether there is harm to a “potential market” for the copyrighted work. However, if there were deemed to be a “potential market” for every use asserted to be a fair use, then the fourth factor would always favor the copyright owner, since the copyright owner would be harmed by loss of the licensing fee for that use. One way courts have tried to avoid this circularity is by asking whether a market, if not already established, is “reasonable” or likely to be developed by copyright owners. In keeping with this approach, courts have concluded that there is no protectible market for criticism or parody, but have considered evidence of harm to markets under development or viewed as attractive opportunities for copyright owners, such as the market for downloads of songs. In some cases, courts have indicated that the absence of a workable market will tend to favor the fair user on the fourth factor because there is no efficient means to buy permission for the use in question.

This is a difficult and evolving area of the law. We can nevertheless venture a few generalizations: Uses that substitute for the copyrighted work in its original market or an established derivative market generally cause market harm that is cognizable under the fourth factor. Where there is no established market, harm is less likely to be found, but still may be found depending on the facts, especially if the fair use case under the other factors is weak and the “market” in question is under development by copyright owners or obviously attractive commercially. In any case, the Supreme Court has said, market harm is a matter of degree, and the importance of the fourth factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.

How should one weigh the various factors in arriving at a determination whether there is fair use?

The fair use test requires an assessment of all the factors together. The courts have repeatedly emphasized that there are no bright line rules, and that each case must be decided on its own facts. The factors often interact in the analysis. For example, the Supreme Court has stated that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The more transformative the secondary use, the less likely it is that the secondary use will substitute for the original and cause direct market harm. In reaching a fair use determination, all of the factors should be explored, and the results weighed together, in light of the goal of copyright law to “promote the progress of science and useful arts” (U.S. Const., art. I, § 8, cl. 8).

To understand better how courts have applied the fair use test in different situations, you may find useful the summaries of selected fair use cases at www.copyright.iupui.edu/FUcategor.htm and http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html.

How does fair use apply to photocopying of course materials?

Before answering this question, it is worth reiterating that Harvard licenses a vast number of periodicals and other copyrighted works for educational use. If you would like to make copyrighted material available to students for course use, you should find out whether the material is already licensed by Harvard, before wrestling with the question whether fair use applies or seeking permission to reproduce the material. If the material is already licensed, you will be able to establish a link to the resource from the course website, or otherwise furnish students a URL, which will enable them to access the material in electronic form and print a copy for personal use. To find out whether a particular article or other work is available through Harvard’s licensed resources, and for instructions on creating links to those resources, see   http://hcl.harvard.edu/research/guides/deeplinking/. If the material is not available through Harvard’s licensed resources, and is not otherwise made available by the copyright holder for reproduction free of charge (for example, under a Creative Commons license), you may in some circumstances be able to copy and distribute the material for course use under the fair use doctrine.

When the Copyright Act of 1976 was being enacted, there was extensive debate about photocopying of copyrighted material for educational and scholarly purposes. Congress declined to adopt a specific exemption for such photocopying, and instead left this to be addressed under the fair use doctrine. Section 107 provides that, if the traditional criteria are met, fair use can extend to reproduction of copyrighted material for purposes of classroom teaching. The difficulty comes in applying those criteria. Recognizing that difficulty, the House Judiciary Subcommittee urged representatives of copyright owners and educational institutions to work out a set of specific guidelines, and the resulting guidelines were included in the House Report on the Copyright Act of 1976.

Those Guidelines for Classroom Copying can be found at www.unc.edu/~unclng/classroom-guidelines.htm. They are intended as a “safe harbor,” to define certain activities that, at a minimum, will qualify for fair use. The Guidelines set forth requirements for “brevity” (limiting the amount of material that may be copied), “spontaneity” (requiring that there not be time to secure permission between when the decision to copy is made and the copy is used in class), and “cumulative effect” (limiting the aggregate amount of such copying). In addition, the Guidelines contain a number of further restrictions, including that an item may not be copied again by the same teacher for use in a subsequent term. The Guidelines also permit, somewhat more liberally, the making of a single copy of excerpts of a work for use by an instructor in research or teaching. When the Guidelines were agreed to by certain representatives of copyright owners and educational institutions, a number of educational groups dissented, objecting that the rules were unduly narrow, even as a safe harbor, and would constrain the reasonable application of fair use to photocopying of classroom materials.

Recent cases addressing photocopying of course materials have rejected the fair use defense. In both of the recent leading cases, however, the defendant was a commercial copy shop, and the commercial nature of the use figured importantly in the analysis. It is therefore not entirely clear how those precedents bear on copying by a professor or university for non-profit educational purposes. In those cases, the excerpts of the plaintiff’s material contained in the course packs ranged from 14 to 110 pages in length in one case, and from 17 to 95 pages in the other, representing 5% to 25% of the works from which they were taken in one case, and 5% to 30% in the other. In assessing the third fair use factor, both courts found these amounts to weigh against the defendant. Both courts also held that the fourth factor weighed against the defendant, primarily because the plaintiffs had lost permission fees for this copying. On the grounds that a viable licensing market for photocopying of excerpts for inclusion in course packs now exists where it did not in the past, one of these courts distinguished a case from 1972 in which an equally divided Supreme Court had affirmed a decision holding that photocopying of journal articles by the National Library of Medicine constituted fair use.

Looking at these cases and the legislative history of the Copyright Act of 1976, the following are factors that a court might take into account, in the framework of the four factor fair use analysis, in determining whether a given instance of photocopying for course use constituted fair use. Some of the questions bear on more than one of the four statutory factors, which remain the touchstone.

First Factor: Purpose and Character of Use

  • Will the material be the subject of significant commentary, criticism, explanation or the like by the instructor? (The more the material functions to illustrate or support the new meaning or message delivered by the instructor—as opposed to functioning mainly as material for students to engage in its own right—the more likely its reproduction and distribution for course use will qualify as “transformative” in the sense described above and hence favor a finding of fair use.)
  • Is the copied material integral to the nonprofit educational purpose of the course? For example, is the material important to a lecture or classroom discussion? Is it required reading? (Even if the use is not “transformative,” use for a nonprofit educational purpose will weigh in favor of fair use.)
  • Is the copyrighted material recently published (for example, in a newspaper), or is the instructor inspired at the last minute to use the material in class, with the result that there is little or no time to obtain permission? (An affirmative answer will weigh in favor of fair use.)
  • Are copies distributed to anyone other than students in the course who need one? (Distribution to others could weigh against a finding that the use is for a nonprofit educational purpose. Unless there is a compelling educational reason to do otherwise, materials copied in reliance on fair use should be restricted to enrolled students.)
  • Are students being charged for the copies? If so, does the charge have any profit component, or does it only recover costs? (Copying and distribution of a commercial nature will weigh against fair use.)

Second Factor: Nature of the Work

  • Is the copyrighted material published or unpublished? (Unpublished works have traditionally been accorded stronger copyright protection than published works.)
  • Is the copyrighted material factual in nature or creative? (More fair use latitude is accorded to factual works.)
  • Is the copyrighted material readily available for purchase? Is it in print or out of print? (The fact that a work is out of print and unavailable for purchase through normal channels will favor fair use copying for educational purposes, though this may be mitigated if permission to photocopy may readily be purchased.)
  • Was the copyrighted material prepared primarily for the educational market—e.g., a textbook? (Fair use is likely to be more restricted for such material, and especially so if the material is intended to be “consumable” in the course of classroom activities, such as in the case of workbooks.)

Third Factor: Amount Copied

  • How much of the copyrighted work is being copied? How long is the portion copied and what percentage of the work does it represent? (The smaller the portion, the more likely the copying will qualify as fair use. Generally, a strong showing on the other factors will be needed to justify copying more than one chapter of a book, or one article from a periodical or newspaper, or one short story, short essay or short poem, or other similarly small parts of a work.)
  • Is the portion copied the “heart” of the work? (Even a quantitatively small portion of a work may weigh against fair use if it is the most important or commercially valuable part of it.)
  • Is the amount copied limited to that which is necessary for the educational purpose to which it is being put? (You should copy no more than is necessary for the educational purpose.)

Fourth Factor: Effect on the Market

  • Will the photocopying result in lost sales of copies of the copyrighted work? (Copying that substitutes for sales of the copied work will weigh significantly against a finding of fair use.)
  • Can permission to photocopy the material in question readily be purchased through the Copyright Clearance Center (the “CCC”) or another efficient licensing mechanism, such as the publisher? (Even if the copying will not supplant sales of the entire work, the market for the work may nonetheless be harmed if there is an efficient mechanism for buying copies of the excerpt you want or for buying permission to copy the excerpt. Whether this market harm, if present, will tip the overall determination against a finding of fair use depends on how the other fair use factors weigh in the particular situation. When in doubt, if a work is listed with the CCC, it is advisable to obtain photocopying permission through the CCC.)
  • Is it difficult or perhaps impossible to locate the copyright holder or are there other significant obstacles to seeking permission? Is the expense of seeking permission greater than the value of the permission sought? (Where there is no cot-effective way to obtain permission, that fact will weigh in favor of a finding of fair use, which can be seen in part as a means for remedying market failure.)
  • Does the University, or other person making the copy, own a lawfully acquired or purchased copy of the work? (A negative answer will weigh against fair use.)
  • Is the price of permission prohibitive—i.e., so high that the instructor would reasonably forego educational use of the material in question rather than pay it? (If so, the societal value of the educational use may tend to counter the potential harm to the market for the work in proceeding without buying permission.)

Other Considerations Bearing on Various of the Factors

  • Is any copyright notice on the original reproduced on the photocopy? (You should reproduce the copyright notice, so that users know the work is in copyright and where to start in seeking permission for subsequent uses, and should include appropriate citation or attribution to the source.)
  • Is this the first time this instructor has photocopied this excerpt for course use, or has photocopying of the same material been repeated from term to term without permission? (Repeated use without permission will tend to weigh against fair use.)
  • How extensive is the reliance on fair use in providing materials for this course? Is the copied material supplementing other copyrighted materials purchased or licensed for use in the course, rather than replacing such materials? (Copying that fills out a reading list of purchased or licensed materials—for example, to bring a subject up to date or supply missing pieces—may be more likely to qualify as fair use than copying that substitutes altogether for materials that are purchased or for which a license or permission has been acquired.)
  • How far outside the Classroom Guidelines is the photocopying in question? (Although the Guidelines are a “safe harbor” and sailing outside them won’t preclude a finding of fair use, they reflect conditions that some copyright owners and educational users agreed are germane to defining a core set of activities that do constitute fair use, and courts have referred to them subsequently.)

As is evident from this discussion, the law in this area is difficult to apply. Outside of the limited Classroom Guidelines, it is hard to know with certainty when fair use applies to photocopying for course use. In view of this uncertainty and the need for relatively simple administrative procedures, a number of units at Harvard—such as the Sourcebook Publication Office—have adopted specific rules and practices to ensure copyright compliance in connection with photocopying. Whenever dealing with those units, you should follow their rules and practices. In other situations, if you wish to make photocopies for course use without obtaining permission from the copyright owner, you should have a good faith reasonable belief that the copying qualifies as fair use.

How does fair use apply to use of third-party materials on a course website?

The basic considerations that bear on the use of copyrighted material on a course website are similar to those discussed above concerning photocopying. But the difference in the medium—a digital network rather than hard copies—and the fact that more kinds of content can readily be provided via a website—audiovisual works, music and color images, for example, in addition to text—alter the application of the four fair use factors in various ways. In analyzing fair use as applied to a course website, the questions discussed above concerning photocopying are generally relevant and provide a good starting point. But it is also useful to consider some of the ways the analysis for course websites may differ, and to refer to the proposed CONFU guidelines.

In connection with the Clinton Administration’s Information Infrastructure Task Force, a Conference on Fair Use (“CONFU”) was convened in 1994 to bring together copyright owner and user interests to discuss fair use issues in the digital environment and to develop guidelines for fair uses of copyrighted works by librarians and educators. A substantial number of organizations representing copyright owners, educators and librarians met over a period of four years. The process did not result in the adoption of any final guidelines, but three sets of proposed guidelines were drafted, some with more bilateral support than others. The three sets of proposed guidelines concern educational fair use of digital images, educational multimedia, and distance learning.1 The guidelines are intended as a “safe harbor,” to define certain activities that, at a minimum, will qualify for fair use. The proposed guidelines, as well as a description of the CONFU process, can be found at www.uspto.gov/web/offices/dcom/olia/confu/confurep.pdf. While the proposed guidelines were opposed by some copyright owners as going too far and by some user interests as not going far enough, they reflect an attempt to find middle ground on these issues and are a useful point of reference.

Of most relevance to course websites are the proposed guidelines on digital images and, especially, those on multimedia works. The digital images guidelines take a permission-driven approach. They allow an educational institution to digitize analog images and provide students access to them over its secure electronic network for educational use for a limited period (one semester in the case of newly acquired analog images) while permission is being sought. Other conditions also apply, including that an institution may not digitize newly acquired analog images that are readily available in usable digital form for purchase or license at a fair price. The multimedia guidelines allow instructors and students to incorporate portions of others’ copyrighted materials, along with their own original material (such as course notes or commentary), in educational multimedia works like course websites. Those guidelines include limitations on, among other things:

  • the portions of copyrighted works that may be incorporated (for example, 10% or three minutes, whichever is less, of a motion picture; 10% or 30 seconds, whichever is less, of a musical work; 10% or 1,000 words, whichever is less, of a textual work, with an exception allowing use of the entirety of short poems in some circumstances; and 10% or 15 images, whichever is less, from a published collective work, but no more than five images by any one artist or photographer);
  • the time for which multimedia works may be used (up to two years); and
  • distribution over the educational institution’s network (requiring technological limitations on access—such as a password or PIN—and on further copying of the work).

The proposed guidelines endeavored to establish a fair use “safe harbor,” not to define the outer boundaries of fair use. It may not be feasible to follow the proposed guidelines in all respects—and fair use does not require that you do so—but they nevertheless provide a useful point of reference as you apply the four statutory fair use factors, which remain the touchstone.

When you apply the fair use factors to multimedia content, the analysis is likely to differ in some ways from the analysis of photocopying discussed above. Taking images, for example, there may be two different copyrights in an image—one in the underlying work of art and the other in the photograph—that need to be considered, though it is sometimes difficult or impossible to identify the photographer;2 you typically need to use the entire image to achieve your educational purpose, and courts have recognized that copying the entirety of an image where necessary for a legitimate fair use purpose will not weigh against a fair use finding; there is a longstanding tradition in higher education of making slides from art reproductions in periodicals, exhibition catalogs and books for teaching and study; there is no centralized and efficient mechanism for licensing educational images that is analogous to the CCC in the case of text; and the reproductions made for educational use on a course website are typically lower in resolution and quality than the images that copyright holders sell or license for publication, thus reducing the likelihood that a digitized image will harm an existing market. In recognition of these kinds of content-related differences, the University is evolving further content-specific guidance for use of copyrighted works on course websites.

The following are some general measures that, while not substituting for the four factor fair use test, will tend to assist a finding of fair use:

  • Use others’ copyrighted material in your course website only if the material is integral to the course curriculum.
  • Include your own comments, criticism and explanation, or otherwise make your use of the copyrighted material transformative.
  • Use only small amounts of others’ copyrighted material, and only what is necessary for your educational purpose. Wherever possible, follow the portion limitations of the CONFU proposed multimedia guidelines.
  • Buy a license to the material if a license allowing the educational use you wish to make is readily available. If the material was or is acquired under license, observe the license terms.
  • Don’t incorporate material in your website in lieu of having students buy books, course packs or other such material, or in lieu of having them buy a license to use the material in digital form if a license allowing the educational use needed for the course is readily available to them.
  • Don’t use portions of others’ copyrighted material that is produced in digital form primarily for instructional use, or where your use would reasonably be expected to harm the market for the analog version of the material.
  • Limit access to students enrolled in the course for which your work is created. Assuming access is provided over a network, require a password or PIN.
  • Wherever feasible, employ streaming formats and technological limits on copying, retention and further dissemination of the work by students.
  • Only incorporate portions from lawfully acquired copies of others’ materials.
  • Avoid taking many excerpts or portions from any one work.
  • Avoid repeated use of the same material from term to term without seeking permission, unless the fair use analysis is strong after weighing the other factors.
  • Alter others’ works only where necessary to support specific instructional objectives.
  • Allow access only during the term in which the course is given, and disable student access thereafter.
  • Credit the sources fully and display the copyright notice from the original.
  • Include a notice that material on the website is being provided under fair use, and that the material may only be used for personal, noncommercial educational purposes. An example of such a notice can be found by clicking www.ogc.harvard.edu/copyright_docs/user_notice.php.

For each item of copyrighted material you wish to use, make a good faith fair use determination. If you do not reasonably believe your proposed use passes the four factor test, obtain permission for the material or don’t use it.

What are the rules for performing a musical or literary work, or showing a film or video, in class?

Apart from fair use, the Copyright Act contains a special provision, Section 110(1), that allows teachers to perform or display a copyrighted work, either live or recorded, "in the course of face-to-face teaching activities . . . in a classroom or similar place devoted to instruction." Thus, you can use sound recordings, live performances, readings, films or videotapes, slides or any other performance or display of copyrighted works without restriction and without permission, so long as you are teaching students in a classroom or similar place such as a studio. The only exception is that you may not use a film or videotape that you have reason to believe is an illegally made copy.

Note, however, that this special classroom dispensation applies to performance and display only; it does not authorize making copies. Nor does it enable you to put materials on your web page, even for course use, because websites are not considered "face-to-face teaching." Similarly, if you wish to videotape a class session in which you have performed or displayed others’ copyrighted material and to transmit the video to remote students (e.g., via streaming), a different set of considerations comes into play. Amended by the TEACH Act in 2002, Section 110(2) of the Copyright Act provides a special exemption for such distance learning activities. The exemption is conditioned on a detailed set of requirements. You can find useful descriptions of the TEACH Act requirements at www.copyright.iupui.edu/teach_summary.htm. If you cannot meet all of the TEACH Act requirements, you may be able to rely on fair use, if the statutory four factor test is satisfied, or you should obtain permission to use the copyrighted material in the video of your class session.

 

 
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