Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4)and the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.)
One of the biggest copyright questions out there is does this fall under fair use?
"The Questions you need to ask
1) What is the purpose and character of the use? (Including if this is for profit or non-profit educational use)
This is sometimes given the largest amount of weight when considering if something falls under fair use. It is always essential to be able to explain and defend the purpose for using copyrighted information. Fair use also generally goes hand in hand with educational as it means the information is being shared with a specific purpose and is not intending to hurt sales of the material or make money off someone else. If it is for education the reason you are using it need to be clear. It should help students reach a learning objective or be essential information that they need. The stronger your argument for why you are using what you are using the more likely it will fall under fair use.
2) What is the nature of the copyrighted work?
Is this work fiction or non-fiction? The nature of the work can have big implications in if will fall under fair use. Non-fiction works are based around facts and are typically intended to share information with others. A textbook on geology would be considered more fact based and would be providing information that already exists as common knowledge. Fictional books/resources are a lot harder to claim fair use because they are the complete creation of an author or authors. Examples include novels and sheet music.
3) How much of the work is being used?
Many want to claim that there is a 10% rule for all works when it comes to fair use. This is a rule that states if you only use 10% or less of a work then fair use applies automatically. This is not the case. Each work must be looked at independently. because each work is different. For instance as was discussed above 10% of a factual textbook is different than 10% of a novel. It is up to you to decide how much is necessary to use. Fair use also does not apply if someone is taking even a small portion from what is considered the "heart" of the work. This means that if the "heart of the work" is taken out the work can not stand on its own, or loses value because a twist or important information is revealed for free. Another example could be a factual non-fiction text that is a new edition and only the new sections are shared. This means that the incentive to buy the new edition would be gone and the publishers would feel a financial impact.
4) What is the effect upon market value?
Adding to that last point you must always think of the market value implications. Is the work brand new or has it been out for a long time? Would using any of the work under fair use hurt an author or publisher's ability to profit off the work? Typically this is where lawsuits and copyright strikes come in. If there is little to no financial impact it does not make sense for a publisher or author to spend money and time trying to prove that fair use should not apply.