What is fair use?

The Copyright Act states that one is not infringing a copyright if they are using a protected work, even without the copyright owner’s permission, for the purposes of criticism or comment, news reporting, teaching, scholarship or research. Case law has added that, in certain circumstances, using a work in a parody is also fair use and, therefore, not copyright infringement.

There are four main factors that are looked at in determining whether a use is fair use:

1. The nature and purpose of the use, such as whether it is for commercial purposes, nonprofit and/or educational purposes, can help determine whether it is fair use. The use of a protected work is less likely to be deemed fair use if it is in a commercial setting, rather than in a private and non-commercial setting.

2. The nature of the protected work itself can help determine whether someone’s use of the work is fair use. For example, use of a nonfiction work, like a scholarly or historical work, is more likely to be considered fair use than use of a fictional work.

3. The amount of the protected work used, and how substantial that amount is in relation to the whole of the copyrighted work, can effect the decision of whether a use is fair use. For example, the more of the protected work which was copied or used, the less likely it is that the use was fair use. Similarly, even if a small amount of the work was used, if that portion was substantial to the work in whole (if it was the central crux of the protected work), the use may not be fair use.

4. The way in which the use effects the possible market value of the protected work can help determine whether the use was fair use. If the new use acts as a substitute for the original work, or lessens the original work’s value, then it is less likely to be deemed fair use (for example, where a teacher copies large portions of a text book so that the students do not need to actually purchase the text book).

Finally, while the use of a work which is unpublished will not prevent a finding that the use was fair use, courts have been very hesitant to actually find fair use when the protected work has yet to be published.