Measuring Fair Use using the PANE Method

Pane Criteria - Purpose, Amount, Nature, Economic Impact

It is important to understand that making a fair use case is rarely a clear “yes” or “no” situation. As we learned, the answer is often “it depends” on a multitude of factors. While not all-encompassing, the acronym PANE can be employed to help you determine if one can make a strong or weak case for fair use of copyrighted material.

So what does this PANE acronym mean?

P-Purpose: What is the purpose for creating or distributing a copyrighted work? Is it for teaching, scholarship, or research?

A-Amount: How much of a copyrighted work are you copying and distributing? Are you using ONLY the amount of copyrighted work you need to illustrate a point/accomplish your goal, or are you copying a work in its entirety?

N-Nature: What is the nature of the work you are copying and distributing? Greater leniency is often given to factual content (scholarly works, peer-reviewed journals, etc) over creative content (Hollywood movies, music, etc).

E-Economic Impact: Does the creation and distribution of copyrighted work deprive the license holder of revenue or profits?

One should not view a fair use case as a concrete “yes” or “no” scenario. Instead, the criteria above should be viewed as “sliders” that can land on strong, weak, or anywhere in between. When making a fair use case, it’s vital to weigh each of the PANE criteria against each other. Many fair use cases are strong as it relates to one or two criteria, but weak as it relates to others. In that vein, one person’s definition of a “strong” case for fair use can vary from another person’s definition.

Say it with me…” it depends!”

Putting PANE to work

Conclusion

There are many ways one can determine the strength of a fair use case. The PANE method is only one way to analyze a case, and cases can certainly be argued differently from person to person. A more in-depth analysis can be obtained by using the fair use evaluator. Any instances where fair use is in question should be analyzed by appropriate legal counsel prior to the reproduction or distribution of materials subject to copyright.

Be sure to mark the page as Done to move to the next section