Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use. Although no single factor is determinative, recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.
The four statutory factors of fair use are:
The purpose and character of the proposed use
The nature of the work being used
The amount of the work being used
The effect of the use upon the market for the copyrighted work
This Code of Best Practices identifies eight scenarios identified by the academic and research library community where fair use principles commonly apply and steps libraries should take to help assure fair use.
The Code of Best Practices in Fair Use for Software Preservation provides clear guidance on the legality of archiving legacy software to ensure continued access to digital files of all kinds and to illuminate the history of technology.