The Copyright Act provides that the "fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright." Not all educational uses are fair use. Four factors are considered in determining whether the use of a work is a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Certain types of uses typically favor fair use, including teaching, research, scholarship, criticism, news reporting and parody. Also favoring fair use are uses that transform the copyrighted work for a new purpose, rather than pure copying.
- the nature of the copyrighted work; Creative and fiction-based copyrighted works are given greater protection than works of a factual or non-fiction nature. Similarly, non-published works are given greater protection than published works.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The smaller the portion of a work used, the more likely the use is a fair use. Conversely, use of a substantial portion of a work or the heart of a work is less likely to be considered fair use.
- the effect of the use upon the potential market for or value of the copyrighted work; Use of a work that replaces the need for others to purchase or license the work, especially if the work is easily purchased or licensed, will weigh against fair use. Making just a few copies, available to only a limited number of people, is likely to weigh in favor of fair use.
Fair Use is decided on a case-by-case basis and is a very very grey area.
