Fair Use

"Was that poem my teacher photocopied for the English class a violation of copyright? You mean my teacher broke the copyright law?" Most probably not. Find out about certain situations in which copyrighted works may be reproduced even if copyright is still in force.

Content Jump

  1. How might I infringe on another person’s copyright?
  2. Fair use, unfair use
  3. Bibliography
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How might I infringe on another person’s copyright?

If copyright refers to the exclusive right to reproducing and creating derivative works based on a tangible piece of creative work usually resting with the original creator of a work upon creation, then copyright infringement must be a violation of these exclusive rights. More formally, infringement refers to the unauthorised use of copyrighted material in a way that violates the creator’s exclusive rights.

You might, for example, infringe on another person’s copyright by performing the work, reproducing the work or making derivative works (substantially building upon that work) without permission.

Some governments permit people to reproduce copyrighted works, in a way that would otherwise constitute a copyright violation, under certain conditions. The reproduction may be for research or study, or (a small amount) for quotation in other works. The Berne Convention, of course, allows for this: signatories may “permit the reproduction of […] works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”. (There, an example of a small amount of work as a quotation in other works.)

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Fair use, unfair use

The following is an excerpt from the US Copyright Act of 1976. In this section, we will be delving further into Fair Use in the US as an example of fair use (or fair dealing) worldwide.

[…] the fair use of a copyrighted work, including such use by reproduction in copies […] 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.

(Since we’re in the mood for some legalese, we shall state here that the following information—and the information in the rest of this site—is not professional legal advice, neither is it a substitute thereof; we hereby disclaim all liabilities and responsibility for damages and consequences, direct or otherwise, arising from your following the information found in our website. Now let’s proceed.)

Determining what is allowed from what is not allowed is more of an art than a science; we will help elucidate fair use by raising several clear-cut examples. For one, a teacher’s photocopying a poem for classroom use would probably count as fair use, as would a small quotation of this website for a school project excerpted without permission. Copyright infringement occurs only when the amount of reproduction exceeds reproduction rights granted by the fair use doctrine.


Photograph of CDs stacked, The law deems that reproducing the song without paying the recording company as an infringement of copyright.
[Picture credit: diagneurotic from flickr. Licensed under CC by-nc-sa 2.0]

Downloading a copyrighted song that CD stores carry off a peer-to-peer network would probably count as a copyright violation. To understand why, consider the nature of the work—a song from which the record label intends to profit. It is therefore likely for the law to consider the act of reproducing the song without the record company’s permission as an infringement of copyright.

By the same count, compare photocopying one chapter of a book for personal research with photocopying copies of entire books in order to make a profit from sales. Which do you think would count as fair use, and which would simply not qualify?

Certainly, it is a lot more likely that the former qualify as fair use and therefore not run afoul of copyright laws. The law tends to consider reproduction for nonprofit educational purposes and of smaller amounts of work as fair use.

As well, it is possible that the person (or organisation) photocopying entire books en masse for profit be prosecuted for violating a criminal law relating to copyright and be fined or put into prison. If not, the copyright holder of the book (most likely its publisher) can file a lawsuit against the entity responsible for the photocopying and claim damages. We’ll see in Measures against DCI how legislation and lawsuit work as measures to curb copyright infringement. So keep reading!