What does the "fair use privilege" mean?
Several important limitations to the author's exclusive rights exist
under copyright law to encourage citizens to fully and openly exchange
and build upon information to increase the public's knowledge. The most
important limitation to the author's exclusive rights is the public's
right to exercise a "fair use privilege" regarding copyrighted works.
Fair use refers to an individual's right to use copyrighted material in
a reasonable manner without the consent of copyright owner. In Sony v.
Universal City Studios; the U.S. Supreme Court stated, "any individual
may reproduce a copyrighted work for a 'fair use;' the copyright owner
does not possess the exclusive right to such a use." The fair use
privilege was originally a judicially created doctrine, but has
subsequently been codified by the copyright statute.
Why does the public have a "fair use" right to use copyrighted material
without the copyright holder's permission?
At the doctrine's core is a fundamental belief that not all copying
should be banned, particularly in socially important endeavors. The
Supreme Court explained, "the fair use doctrine exists because copyright
law extends limited proprietary rights to copyright owners only to the
extent necessary to ensure dissemination to the public."
Copyright law serves as a regulatory scheme designed to balance the
competing rights of creators to exploit their work, entrepreneurs to
receive a return on their investment, and the public's interest in
gaining access to works. The fair use doctrine and other public rights
are designed to further the ultimate goal of disseminating knowledge to
the public. In developing an information infrastructure that serves the
public interest and encourages the open flow of information, it is
essential to continue to balance the competing interests and preserve
the public's fair use rights in an electronic environment as it has in
more traditional formats.
How do I know if my use of copyrighted material would be considered a
Whether a particular use of a copyrighted work will be considered a fair
use not subject to copyright depends upon the particular facts and
circumstances involved. The biggest problem with the right is often
trying to determine whether it applies to a specific action. This is
because the law on fair use is murky and no real definition has ever
There is no "bright line" test that can tell if a particular use would
be considered "fair," but the Copyright Act lists particular activities
generally considered fair (this list is not to be construed as exclusive
or limiting in any way). Some examples of uses listed in the statute
that would generally be considered a fair use to copy copyrighted
material include: Criticism, comment, parody, news reporting, teaching,
scholarship, research, or personal use such as time or format shifting.
What are the factors to balance to determine if a use is fair?
The copyright statute lists four factors to balance together on a
case-by-case basis to determine if a particular use would be considered
fair. The law's language does not preclude consideration of other
factors however. The factors to consider include:
The purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes --
Courts are more likely to find fair use where the use is for
The nature of the copyrighted work -- A particular use is more
likely to be fair where the copied work is factual rather than creative.
The amount and substantiality of the portion used in relation to
the copyrighted work as a whole -- A court will balance this factor
toward a finding of fair use where the amount taken is small or
insignificant in proportion to the overall work.
The effect of the use upon the potential market for or value of the
copyrighted work -- If the court finds the newly created work is not a
substitute product for the copyrighted work, it will be more likely to
weigh this factor in favor of fair use.
Due to the difficulty in determining exactly when the fair use privilege
would allow you to exercise one of the rights otherwise reserved for the
copyright holder (and the penalties for guessing incorrectly can be
extremely costly, even including jail time), it is wise to consult
experienced counsel as well as to review previous judicial opinions
where courts have analyzed whether a particular use would qualify as
Do I have the right to make a copy of my CD for my own personal use?
Yes. The fair use doctrine allows an individual to make a copy of their
lawfully obtained copyrighted work for their own personal use. Allowing
people to make a copy of copyrighted music for their personal use
provides for enhanced consumer convenience through legitimate and lawful
copying. It can also enlarge the exploitable market for the rights
holders. The fair use privilege's personal use right is what allows an
individual to make a backup copy of their computer software as an
essential defense against future media failure.
Personal use also permits music fans to make "mix tapes" or compilations
of their favorite songs from their own personal music collection or the
radio for their own personal enjoyment in a more convenient format, or
"format shifting." Another example of acceptable personal use copying
of a copyrighted work is "time-shifting," or the recording of a
copyrighted program to enjoy at a later and more convenient time.
As new media present new ways for people to enjoy music, the public's
fair use rights accompany them into the electronic frontier. Now, music
fans have the right and ability to copy their own music collection onto
their own computer storage device and create customized play lists for
their own personal use and enjoyment of their music.
It is important to note that while consumers have the right to listen to
their own music collection for their own personal use, they do not have
the right, however, to make their music collections available to others
by uploading them onto the Internet for public downloading.
** To learn more about copyright law's fair use privilege, check out
Stanford University's Copyright and Fair Use Web Page at: