Fair use is a limitation on copyright originally created by court decisions; courts found that such uses were consistent with the constitutional purpose of copyright. Congress later incorporated the concept into the Copyright Act of 1976. The premise of fair use is that there are some limited uses of copyrighted material that cause no harm to the copyright holder. As spelled out in the statute, use for certain purposes such as criticism, comment, news reporting, teaching...scholarship, or research [emphasis added] may be fair use. There are four elements that one considers in deciding whether copying or making other use of copyrighted material is a fair use:
The practical meaning of determining whether a use is fair use is what a court would decide if the copyright holder brought an action for copyright infringement. So whether you, the student or instructor, believe a particular use is fair use may be a guessing game if you do not have legal training in the subject.
Decisions on whether a proposed use of a portion of copyrighted material is within the fair use limitation are inherently case-by-case decisions. Because of the statutory language, it is difficult to create blanket guidelines. Nevertheless, guidance is available from prior court decisions and best practices guides, often created by librarians working together with attorneys or other copyright law experts. For librarians looking to support their institution's academic work, see "Code of Best Practices in Fair Use for Academic and Research Libraries," published by the Association of Research Libraries (ARL). ARL also discusses fair use in its jointly sponsored "Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations." This publication discusses other aspects of copyright law and discusses various sets of guidelines that have been produced by government offices and private organizations, including publishers. A more restrictive view of copyright guidelines has been published by the Copyright Clearance Center, which represents copyright holders as their agent in arranging licensing of copies, in "Campus Guide to Copyright Compliance."
Because the factors listed in the fair use provisions of the copyright act are dependent on the circumstances of any given situation, ultimately federal courts make the decision where a copyright holder chooses to bring an action accusing someone of infringing the copyright. University legal counsel and others concerned with the application of copyright at their institutions may keep up with such cases, some of which are well-publicized in the academic community. One ongoing such case is Cambridge University Press v. Becker, an infringement action brought against several officials of Georgia State University in Atlanta. The publishers allege that the university was engaged in wholesale reproduction of copyrighted materials in online course management systems and library electronic reserves. Filed in 2008, the case proceeded to motions for summary judgment by the plaintiffs and motions to dismiss filed by the defendants. Ultimately the case was tried before the judge, who entered the first verdict in May, 2011 the judge issued a verdict and order finding that only a few of the alleged incidents of infringement were not avoided by the fair use limitations. The judge thoroughly discussed the application of the four fair use factors, including what constituted a substantial portion of the materials. In subsequent orders, the judge found that the university was the prevailing party for purposes of awarding court costs and attorneys fees.
Kevin Smith, Scholarly Communications Officer at Duke University has posted excellent analysis of the case on his blog here and in several prior posts listed by this search of his blog. As he notes, the decision is subject to appeal and more is yet to be written about it.
The case has been appealed twice, and in the latest decision (October 2018), the U.S. Court of Appeals for the Eleventh Circuit has again set aside a judgment by the trial court and remanded the case to that court yet again. Kevin Smith, now the Dean of Libraries at the University of Kansas, points out that many of the supposed wrongful acts by Georgia State cited by the publishers have fallen by the wayside as libraries move further into curating digital content. he expects the case to have little additional impact.
The University of Cincinnati has not adopted a fair use checklist or other detailed policies on fair use. If you have questions about whether a specific activity would be fair use, please contact the university counsel's office at (513) 556-3483