Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

Bunker, Matthew D. "Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship"  Journal of Copyright in Education and Librarianship  3(1)(2019): 1-24. (https://doi.org/10.17161/jcel.v3i1.648). - One of the most important doctrines is copyright law is "fair use." Fair use is determined by a four-factor test: "(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; and (4) the effect of the use upon the potential market for the copyrighted work." (Section 107, Copyright Act, 2012). Simple, right? Unfortunately not. The interpretation of the fair use doctrine is not straightforward, and court rulings provide the only definitive case-by-case interpretations. This article is aimed at helping scholars to understand the application of the fair use doctrine as it applies to their typical uses of copyrighted material. It includes detailed sections on case law related to "scholarly appropriation," "the analysis and criticism of literary and artistic works," "biographies," and the "reproduction of social scientific instruments." The author also provides some helpful recommendations on key aspects of fair use. - CB