|Brian Cockburn's principal role is to teach and advise faculty, administrators and students about copyright, and intellectual property.|
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Fair use allows for the use of copyrighted material without permission under certain circumstances. It is an affirmative defense, the concept for which grew out of more than a century of case law. Courts have repeatedly (for example, in Campbell v. Acuff Rose Music) stated that fair use must be determined on a case-by-case basis.
What exactly constitutes a fair use is left open by the statute. For example, the law does not exclude any of the exclusive rights from fair use, but it does specifically include the right of reproduction. The law lists four factors to be considered in deciding fair use cases. JMU encourages use of the Fair Use Evaluator to assist you in determining if you use is fair.
Purpose plays an important role in determining whether a use is fair. The law suggests several possible fair uses, such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” but this is not an exhaustive list. Other factors to be considered include, but are not limited to: the nature of the work (is the work published or unpublished? factual or creative?), the amount used, and the effect on the market for the work. Recently “effect on the market” has become increasingly heavily weighted.
The law governing fair use is contained in 17 USC §107.