Copyright exceptions provide limitations on the exclusive rights of the copyright holder in situations where it is deemed to be in society’s best interest to do so, such as for education or research, to protect certain types of users of copyrighted content, or to fulfill Constitutional requirements such as free speech. Many copyright exceptions are limited and detailed in their scope.
In contrast, fair use is a part of the copyright statute (17 USC 107) that provides a flexible approach to copyright exceptions for a wide variety of useful societal purposes. These include (but are not limited to): criticism, comments, news reporting, teaching, scholarship, and research.
Four factors are used to analyze whether a use is fair use:
- The purpose and character of use, including whether the use is for commercial or noncommercial purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- The effect of the use upon the potential market for or value of the copyrighted work.
In recent years a determination of whether a use is transformative has become an important part of many fair use analyses. A transformative use occurs when the work is used for a “broadly beneficial purpose different from that of the original.”
When a fair use analysis is needed, there are a variety of tools that can help:
For any questions or concerns regarding use, access, or permissions contact the SOHP by email here.