Rensselaer global navigation
Rensselaer Polytechnic Institute RPInfo Search RPI Contact RPI Campus Directories Academic Degree Programs, Academic Schools

Copyright and Fair Use

© - What's Protected
© - Fair Use
© - Additional Sources

"Fair use" is perhaps the most contentious aspect of copyright law. Few people agree what it means to be "fair" and, in fact, the law is deliberately vague so that each case may tried based on the particular circumstances involved. The following is taken from Section 107, the fair use clause of current U.S. copyright law.

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    From the Library of Congress.

The courts consider all four factors (more or less) equally when deciding cases involving fair use. Fair use of a work under copyright must satisfy all four of the above criteria. Do not assume that every academic or educational purpose is protected under fair use. While the courts certainly favor non-profit educational uses of copyrighted works, that favoritism does not grant carte-blanche to members of the academic community.

Courts also favor uses that are not simply reproductions, but new works which are "transformative" in some manner. In effect, something new or of new utility. This addresses the "purpose" factor of fair use. Consider also the "character" of the use and of the protected work. For example, fictional and other creative works enjoy much more protection than non-fiction or non-artistic works. The copyright of a poem is guarded much more strongly than, say, the equations and instructions of a textbook.

Figure the "amount" of the work copied in both quantitative and qualitative terms. How much of the original can you duplicate? No one really knows and no legally binding formula exists. Inserting excerpts from one written work to illustrate or support an argument in another written work will not likely violate the law. Copying the heart and soul of the work is however probably not appropriate. This is difficult to avoid with images and multimedia works where a person usually wants the whole image or a scene which distinguishes the motion picture from all others.

Finally, when considering the market factor, assume that any use which would have justified the purchase of an original is not fair use. When small excerpts improve or significantly enhance the existing work, the "transformative" nature of the new work will often pass as a fair use.

Because these four guidelines leave room for interpretation, many organizations develop policies to clarify their position. Folsom Library's guidelines for photocopying materials for classroom use is a good example. However, people who are intelligent and reasonable will often disagree when interpreting fair use in even the most common situations. See additional sources of fair use guidelines that other organizations have created for their own purposes.

In early 1997, the Fair Use Guidelines for Educational Multimedia were presented to Rensselaer via live videoconference. While these Guidelines were developed without much consideration for the World-Wide Web, during the question and answer period of the videoconference, an attorney made a sobering statement in response to a question about the Web:

  • Fair Use applies only to situations where you have control over who has access to the materials. For the web, this means that the material used must be on a secure server; it can't reside on a web page (or in your web space) for all the world to see.

This is the opinion of one expert. Consider it better to err on the safe side and refrain from building web pages with materials for which the copyright owner may have the means and justification for pursuing legal action. Although copyright owners are more likely to sue those profiting from their creations (besides, commercial use of RCS is expressly prohibited), put yourself in their shoes. Eventually, you too will produce work for which you will want to receive all the credit.

See also the Committee on Electronic Citizenship's guidelines for Responsible Use of Information Technology at Rensselaer, particularly sections 4.1.2 on intellectual property and 4.8 on commercial activity. Rensselaer also has a detailed Intellectual Property Policy which may answer many specific questions for members of our community.

© - What's Protected
© - Fair Use
© - Additional Sources