Copyright Basics for the Health Sciences: What is Fair Use?

Fair use is a part of the copyright statute, "Limitations on exclusive rights: Fair Use" (Copyright Act, 17 U.S.C. § 107), that lays out a flexible approach to granting exceptions to copyright for a range of purposes that are deemed useful to society. These purposes include (but are not limited to): criticism, commentary, teaching, scholarship and research.

Fair use is one of the law's exceptions to the rights holder's exclusive rights. Fair use does not mean that anything copied for educational purposes is okay.To determine if a use is fair use, four factors must be applied to the situation: 

The purpose and character of use, including whether the use is for commercial or noncommercial purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
The effect of the use upon the potential market for or value of the copyrighted work.
(Copyright Act, 17 U.S.C. § 107)

Using these four factors is called a fair use analysis. When doing a fair use analysis, all four factors must be taken into consideration.

Fair Use Scenario: Stevan is a health affairs graduate student who found an interesting chapter in a new book. The chapter covers the history of UNC Health Care, with details he had not known before, so Stevan wants to scan it and share it with the other students in his cohort. Can Stevan copy the chapter under the fair use guidelines?

Let's examine how each of the four factors applies to his case:

1. Purpose and character of use: Stevan wants to use the chapter for educational purposes, which counts in his favor.
2. Nature of the work: Stevan wants to use a scholarly book chapter, which is a fact-based rather than imaginative work. This also counts in his favor. 
3. Amount and substantiality of the portion used: Stevan wants to use an entire chapter, which counts against him, but he only wants to use one chapter out of the entire book.
4. Effect of use on market: This factor is more difficult to judge. Stevan is only planning to share the chapter with other students in his class, but these other grad students nevertheless represent a potential market for the book that would be lost because Stevan shared copies instead of suggesting they each purchase the book.

Overall, if this is a one-time use, the effect on the market from one class's worth of copies of one book chapter is small. Also, because the chapter is a small section of a much larger work, this also limits the effect on the market. 

More information about evaluating the four factors:

• Fair Use (Scholarly Communications Office, UNC-CH Libraries) 
• Using the Four Factor Fair Use Test (University of Texas)
• Measuring Fair Use: The Four Factors (Stanford University)
• Fair Use Checklist (Ohio State University Health Sciences Library)

Other alternatives might be helpful to Stevan and his fellow students without having to consider the copyright implications. If UNC-CH owns the book in question, Stevan could then set up, or ask his professor to set up, a link in Sakai to the book's record in the UNC Library Catalog.

If UNC-CH does not own the book, he could also consider putting the book chapter on reserve. The Reserves Staff at the Health Science Library will try to locate the copyright holder, obtain permission, and make the chapter available to Stevan's class in compliance with copyright law and fair use.