OER & Fair Use: Fair Use

Fair use is a legal doctrine that says that you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. 

Purposes permitting the application of fair use generally include review, news reporting, teaching, or scholarly research.

If you want to use copyrighted material without requesting permission from the copyright holder, you must engage in a four factor fair use analysis. 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• Is the work unpublished or widely published?  Using unpublished works is less likely to be considered fair use than use of widely published works.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?
• Are you avoiding using the “heart” of the work?
• Did you use just what was necessary to get your point across?

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?

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.