Judith Herb College of Education

Fair Use

One of the questions many members of the College of Education have is what copyrighted material are we allowed to use in both face-to-face and online courses.  

Strictly speaking, fair use is a the legal doctrine that allows the limited use of copyrighted material without having first acquired the permission of the copyright holders. Section 107 of the Copyright Act contains the framework of fair use which is made up of four factors:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. 
Fair Use is always weighted in favor of nonprofit entities. Also, there are several purposes that are applicable to be considered "fair":

  • criticism
  • comment
  • news reports
  • teaching
  • scholarship
  • research

2. Nature of the copyrighted work. 
Is the item published or not? Unpublished material is less likely to be fair to use. It is possible in some circumstances for unpublished material to be used. 
Is the material factual or not? More actual material is always.
 
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole. 
Fair use always favors smaller amounts of the source work. The Copyright Act considers 10% or less fair to use. 

4. Effect of the use upon the potential market for or value of the copyrighted work. 
Does the unlicensed use harm the current or future income of the copyright holder? If the answer is “no” then fair use is favored. 
Could you have purchased or licensed the work? You will need to determine if the work is “reasonably” available for purchase before copying.

 Below is a six minute video on understanding "Fair Use".

Last Updated: 6/27/22