The following illustration is intended to guide you through a Fair Use analysis. Answers in the green boxes strongly favor Fair Use, answers in the yellow boxes lean towards Fair Use, and answers in the red boxes bode against Fair Use.
Ideally, all your answers will fall within a green box, but if your answers fall within a yellow box, the planned use will probably qualify as Fair Use. Answers that fall within a red box do not automatically rule out Fair Use. However, a red box answer should trigger you to explore alternatives that could move the answer to a yellow or green box.
What is the purpose and character of the use?
What is the nature of the work to be used?
How much of the work will be used?
If this kind of use were widespread, what kind of effect would it have on
the market for the original or for licenses or permissions?
The following are examples of Fair Use situations that may arise at MMC and analyses under the four factors test.
An instructor wants to post a journal on Blackboard for use by his students. The article is fact-based and is relevant to the course. He used the same article in the same course the year before.
Purpose: The purpose is clearly educational, so this favors Fair Use.
Nature: The work is factual, so this favors Fair Use.
Amount: The instructor wants to use the entire article, which does not favor Fair Use. However, if the entire article is necessary to achieve the educational purpose, the amount used should not override Fair Use.
Market Effect: The fact that the article is being used repeatedly bodes against Fair Use. The more repeated uses, the more the scale tips against Fair Use. However, it helps that the article is not from a publication that is expressly marketed for educational use. Also, if the publisher has not created a mechanism for licensing the material, then the effect will not be seen as significant.
Alternatives: The instructor should see if the article is available on the journal’s website free of charge. If it is, the instructor should direct his students to the article by providing them with the link. He could also see if MMC’s library subscribes to any online service that contains the article and provide his students with instructions for access.
An instructor wants to post several newspaper articles on Blackboard that span several weeks. The instructor subscribes to the newspaper and the articles are relevant to the course.
Purpose: The purpose is clearly educational, so this favors Fair Use.
Nature: The news articles are factual, which favors Fair Use.
Amount: Posting individual articles as opposed to the entire newspaper favors Fair Use.
Market Effect: Posting individual articles and limiting access just to students in the course will ensure that the sales of the newspaper will not be significantly affected.
Alternatives: The instructor should see if the article is available on the newspaper’s website free of charge. If it is, the instructor should direct her students to the article by providing them with the link. She could also see if MMC’s library subscribes to the newspaper or any online service that contains the articles and provide her students with instructions for access.
An instructor would like to post on Blackboard pages from an unused workbook published by an academic publisher. The workbook is still in print. He bought the workbook new. The material is relevant to the course he is teaching.
Purpose: The purpose is educational, which favors Fair Use.
Nature: The workbook is a “consumable” publication that is marketed specifically for students. It is intended to be used once and then replaced. Therefore, the nature of the material weighs heavily against Fair Use.
Amount: Providing significant excerpts or the entire workbook would weigh against Fair Use.
Market Effect: Workbooks are created for the educational market and students are the main purchaser of such materials. Providing students with these materials may deeply affect the market for them and therefore may weigh heavily against fair use.
Alternatives: Permission from the copyright owner should be sought for “consumable” materials used. Instructors should also consider having students purchase the workbooks.
An instructor would like to post on Blackboard a video recording of a recent television broadcast which is relevant to the course. The show is part of a series aired on network television and broadcast to the public at no charge.
Purpose: The purpose of the use of the television show is educational, which weighs in favor of fair use.
Nature: The law of fair use applies more narrowly to highly creative works such as television shows. This may tip this factor against fair use. On the other hand, if the program is more “factual,” such as a news or current affairs program, this factor may tip towards fair use.
Amount: The instructor should limit the portion of the video recording to the amount needed to satisfy the educational purpose.
Market Effect: Limiting access to only the students enrolled in the course may tip this factor in favor of fair use. If the program is available for purchase, this factor will tip more strongly against fair use. Using network television programs which are available to the public at no charge will more likely fall within fair use than the use of a program only available on a cable network for paid subscribers.
Alternatives: Providing one copy of the video recording in the library reserves for students to check out will more likely be a fair use than posting the recording on Blackboard.
