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Fair Use

Fair use, one of the statutorily permitted uses of copyrighted works, was intended to allow limited, non-commercial use of copyrighted works and to strike a balance between benefiting the public and allowing authors to exploit their creations. However, legislative intention does not always result in clear rules for the conduct of business or science. To quote from the excellent material in the University of Texas System's Copyright Crash Course (used by permission of UT),

We would all appreciate a clear, crisp answer . . . , but far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it's like a no-man's land. Enter at your own risk.

Usage that could interfere with the copyright holder's right to benefit commercially from the work will tip the balance against claiming the fair use defense, whereas a controlled not for profit use of a small amount of the copyrighted work will be more likely to fall under fair use. However, even though Caltech is a not-for-profit educational institute, one cannot assume that use of a copyrighted work at Caltech constitutes fair use of that work. The statutory basis for fair use is 17 U.S.C. 107, which states in part:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work; 
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [Italics added]

Analysis of fair use is highly fact dependent and no one factor is more important than another. In addition, the factors are inter-related. For example, if the copyright work is sold in the educational market, the claim of fair use for educational purposes may not be persuasive because of the effect of the use on the potential market. Except in the most obvious cases, reasonable minds can disagree on the outcome of a fair use analysis. Because of the absence of strict guidelines, results are difficult to predict. Recent litigation over coursepacks on university campuses provides different modes of analysis using the 4 fair use factors.

For additional information on fair use, see the Stanford Universities Library Copyright & Fair Use site. A checklist developed by Indiana/Purdue University-Indianapolis is also available to help determine whether the intended use of copyrighted material could constitute fair use of the work. The University of Texas also has a step-by-step approach to the inquiry.

If you have specifics questions about the applicability of fair use to the use of a copyrighted work at Caltech, please contact us at the Office of The Intellectual Property Counsel (x4567).

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