About Fair Use

Tufts University has a policy on fair use of copyrighted materials. Go directly to the “Tufts University Policy on Fair Use of Copyrighted Materials.”

Fair use is built into the copyright law (17 USC § 107) to address the tensions between the rights given to the copyright holder and freedom of speech.  If you want to use copyrighted material without requesting permission from the copyright holder, you must engage in a four factor fair use analysis.  No one factor is dispositive.  Consider the following:

1) Purpose and character of the use

  • Is your use a non-profit educational use?

Is it “transformative”?  Does your use add “new meaning, expression, or message” to the original copyrighted work  (Campbell v. Acuff Rose Music, 510 U.S. 569 (1994))?  Use of a portion of a copyrighted work for criticism or parody, or in a new context that otherwise adds value to the work, are factors that lean towards a finding of fair use.  If a specific article is being assigned for the purpose of analyzing or critiquing the author’s point of view, a finding of fair use is more likely.  If an article is primarily background reading, then using it without permission is less likely to be deemed fair use.

2) Nature of the copyrighted work

  • Is the original creative or more factual in nature?  Use of creative works is less likely to be considered fair use than use of works which are primarily factual.
  • Is the work unpublished or widely published?  Using unpublished works is less likely to be considered fair use than use of widely published works.

3) Amount

  • Is the amount appropriate to the use?
  • Did you use just what was necessary to get your point across?
  • In one well-known 2012 case involving Georgia State University, the judge ruled that an appropriate limit for fair use would be no more than 10% of a book with 10 chapters or less, or one chapter for books with more than 10 chapters.  While this decision is not a binding precedent in other jurisdictions, it should be taken into account in deciding what portion of a work may be used without permission.

4) Market Impact

  • Would the original copyright holder be negatively impacted by your use?
  • Is there a market to license the use and are licenses readily available?

See ARL’s “Code of Best Practices in Fair Use for Academic and Research Libraries” Section 1 (p. 13-15) for more information.

Tufts’ policy is that it is up to the individual to decide whether using copyrighted materials without permission constitutes fair use, based on the analysis described above.   If you think your proposed re-use of copyrighted materials may fall under fair use, it is a best practice to document your thought process.  If you are not sure, contact a member of the Scholarly Communication Team for assistance.

 

For more information on fair use, see:

Association of Research Libraries, et al., coords. “Code of Best Practices in Fair Use for Academic and Research Libraries.” January 2012.

Gerhardt, Deborah and Madelyn Wessel.  “Fair Use and Fairness on Campus.”  North Carolina Journal of Law and Technology 11 (Spring 2010): 1-71.

Copyright and Fair Use, Stanford University Libraries.

Aufderheide, Patricia and Peter Jaszi.  Reclaiming Fair Use: How to Put Balance Back in Copyright.  Chicago: The University of Chicago Press, 2011.  Print.