There are exceptions in the copyright law that allow for re-use of copyrighted material without the owner's permission, under certain circumstances. These exceptions aim to balance the rights of authors with the public's ability to create, share and learn.
The most common copyright exceptions in higher education include:
- Fair use
- The face-to-face teaching exemption (17 U.S. Code Section 110)
- The TEACH Act (full revision of Section 110(2))
Fair use is probably the most recognizable copyright exception and frequently used in higher education. Fair use is flexible and allows for the re-use of copyrighted material without permission, as long as the use meets certain criteria. Generally, a use is "fair" if it is done for a limited and "transformative" purpose. Determinations of fair use can only officially be made by a court of law and judges typically rely on the "four factor test" to make a fair use determination.
The Four Factor Test
The four factor test considers the following about your use of the copyrighted material:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount of the work used
- The effect on the potential market for the copyrighted work
For each of the factors, certain answers favor a fair use argument while others do not. Generally, the following circumstances support fair use:
1. Purpose and Character of the Use
2. Nature of the Copyrighted Work
3. Amount of Work Used
4. Market Effect
All factors have to be taken into consideration as a whole. Use one of the fair use analysis tools below to conduct your own four factor test.