Taken from the University System of Georgia Office of Legal Affairs

PART I. PRINCIPLES OF FAIR USE
The 1976 Copyright Act grants the "fair use" of copyrighted materials for a variety of purposes, for the creation of new works, for educational use, and for personal use. The following principles provide a framework for the application of educational fair use. The goal is to enable teachers and scholars to use copyrighted materials for teaching, scholarship, and research with respect for the rights of copyright holders as well as their own rights.

   The principles are based on three propositions: (1) the copyright statute regulates the copyright monopoly it grants in order to maintain an appropriate balance between the rights of copyright holders and the rights of users; (2) the copyright monopoly is essentially for marketing a work and does not extend to the copy of a work that the copyright owner has sold; and (3) the ultimate test for educational fair use is whether the copying is done for sound pedagogical reasons and not simply to avoid purchasing a work.

   These ideas, and the fair use principles stated below, are grounded in the discussion that follows in Part III and in the legal authorities discussed in Part IV. The principles of fair use are derived from the Fair Use Statute, 17 U.S.C. § 107, which is printed in full in Part IV.

  1. Fair use is derivative of copyright and is complex in part because there are three kinds of copyright, each of which varies in the scope of copyright protection:
     
    1. Creative copyright, for original works such as a novel, drama, painting, sonata, or poem (plenary copyright protection)
       
    2. Compilation copyright, for a directory or anthology (limited copyright protection)
       
    3. Derivative copyright, for works based on another work, such as a motion picture based on a novel (limited copyright protection)

     
  2. Fair use applies to all copyrighted works regardless of the media in which they are fixed: print, electronic, or multimedia.
     
  3. There are four kinds of use:
     
    1. Personal use is the use of a copyrighted work for the purpose for which it was intended, e.g., reading a book.
       
    2. Infringing use is a use that violates one of the rights granted to copyright holders in section 106 of the copyright statute.
       
    3. Fair use is a use permitted by the copyright statute that might otherwise be infringing.
       
    4. Constitutional use is the use of uncopyrightable, i.e., public domain, material and is protected by the U.S. Constitution.

     
  4. Fair use is a right granted to users by section 107 of the copyright statute.
     
  5. Fair use modifies the marketing monopoly of the copyright holder so that copyright can fulfill its constitutional purpose of promoting learning.
     
  6. Everyone has a constitutional right to use public domain material without limitation, even if it is included in a copyrighted work.
     
  7. One infringes a copyright, not a work, and fair use applies only to the use of the copyright. Therefore, determining if a use is fair requires making the following distinctions between a use of the work itself and a use of the copyright of the work:
     
    1. One who copies a work to put it on the market uses the copyright, because the copyright holder has the right to market the work. Without permission, such a use is an infringing use.
       
    2. One who copies from a work for study or research uses the work, not the copyright, because the use is a use for which the work was intended. Such a use is a fair use, not an infringement.

     
  8. One may always use a work without permission; one may use a copyright only with permission or as a matter of fair use.
     
  9. The threshold issue in determining fair use is whether the copying involves a use of the work or a use of the copyright because:
     
    1. The use of the work is by definition a protected use.
       
    2. The use of the copyright must be with permission or must fulfill fair use criteria.

     
  10. Fair use normally entails copying and is of three kinds:
     
    1. Creative fair use by authors who copy from other works to create their own work.
       
    2. Personal fair use by individuals who copy from works for their own learning or entertainment.
       
    3. Educational fair use by teachers, scholars, and students who copy for teaching, scholarship, or learning.

     
  11. There are four nonexclusive statutory factors--all directed to the marketing of works-- to use in determining whether a use is fair. They are:
     
    1. The purpose of the use, including whether such use is for commercial or for non- profit educational purposes. (Commercial purpose implies a use of the copyright; educational purpose, a use of the work.)
       
    2. The nature of the work. (This requires a determination of whether the work is a creative work, a compilation, or a derivative work.)
       
    3. The amount used in relation to the work as a whole. (The amount of the work used is a major factor in determining whether the use is merely a use of the work or a use of the copyright; the greater the amount used, the more likely the use will be a use of the copyright.)
       
    4. The effect of the use on the market or potential market for the work. (The greater the market effect, the less the likelihood that the use will be fair.)

     
  12. The four factors are not exclusive. Other factors that may be relevant are the availability of the work, the ability to determine whether the work is still under copyright, and the ability to locate the copyright holder.
     
  13. The four factors are necessary because fair use is to be determined on a case-by-case basis in order to protect the constitutional rights of users.
     
  14. Attempts to limit the fair use right with quantitative guidelines are without statutory authority.
     
  15. The legal effect of quantitative guidelines is to provide a safe-harbor, i.e., copying within the guideline limits automatically qualifies as fair use. Such guidelines do not, and cannot legally, mean that copying in excess of the guidelines is infringement and not fair use.
     
  16. The limitations on the copyright monopoly in sections 108-120 grant rights to non-copyright holders as to particular type uses; these rights, however, do not negate the general right of fair use, which permits uses in excess of the limitations if the additional uses are fair.
     
  17. The location of the line between fair use and infringing use is determined by the market factor, that is, the extent to which the copy becomes a substitute for the purchase of the work.
     
  18. The 1976 Copyright Act protects educational fair use with four different provisions:
     
    1. The use of works for "teaching (including multiple copies for classroom use), scholarship and research" as exemplars of fair use (Sec. 107)
       
    2. The distinction between commercial and nonprofit educational use (Sec. 107(1)), a superfluous distinction unless it means special protection for educational use
       
    3. The provision that fair use overrides the limitations on library photocopying (Sec. 108(f)(4))
       
    4. The good faith defense for employees of nonprofit educational institutions, libraries, and archives (Sec. 504(c)(2))

     
  19. The copyright statute does not empower copyright holders to override the fair use right by overbroad copyright notices or other unilaterally imposed provisions