Putting Academic Fair Use to the Test

Information Today, Vol. 25, No. 6, p. 1, 2008

U. of Pittsburgh Legal Studies Research Paper Series

4 Pages Posted: 9 Jul 2009

Abstract

The Fair Use Doctrine is one of the most important, complex and misunderstood elements of copyright law. It was born out of the principle that copyright law needs to balance the rights of authors and creators to reap a benefit from their creations with the public’s right to continue to develop new knowledge on the foundation of these creations. It is intended to function by allowing the use of existing creative works without the need to obtain permission or pay royalties, but only for certain purposes that have been identified as serving the public good. The complexity of the Fair Use Doctrine is that it is both very broad and quite narrow. The doctrine itself can be found at Title 17, Section 107 of the United States Code. The statute has two major elements. First is a broad list of purposes to which fair use may apply. These include “criticism, comment, news reporting, teaching (including copies for classroom use), scholarship, or research.” However, just because a proposed use fits one (or more) of these purposes does not necessarily mean it is a fair use. The second element of the Fair Use statute is the “four factors test” which determines if a “work in a particular case is a fair use” and serves to narrow down which uses are fair and which are not. The four factors are: the purpose and character of the proposed use, the nature of the copyrighted work being used, the amount of the work being used, and the effect of the use on the market for the copyrighted work. In applying the factors, a proposed use does not need to meet all of the four factors. A proposed use is measured against each factor, which is then weighted for or against fair use. It is the total weight among the factors that will finally determine if a use is fair or not. This exercise in measuring and weighing can be done between the parties in a fair use case. However, if the parties can’t agree as to whether a use is fair, lawsuits may be filed and it becomes up to the court to decide. While no one wants to be sued, there is some benefit in that the court decisions which the four factors help to further narrow the scope of the fair use test and help subsequent users determine if fair use may apply to their proposed use.

Keywords: Fair Use Doctrine, fair use, copyright law, copyright infringement, four factors test, lawsuits, academic fair use, coursepacks, course reserves, electronic distribution, Oxford University Press Cambridge University Press & Sage Publications v. Georgia State University

Suggested Citation

Pike, George H., Putting Academic Fair Use to the Test. Information Today, Vol. 25, No. 6, p. 1, 2008, U. of Pittsburgh Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=1431587

George H. Pike (Contact Author)

Northwestern University Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0295 (Phone)
312-503-9230 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
83
Abstract Views
578
Rank
537,046
PlumX Metrics