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Item 1
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CHECKLIST FOR FAIR USE ANALYSIS

This checklist is a tool to assist you as you apply the fair use balancing test to specific situations in which you want to use copyrighted materials. If a particular use is fair use, it may proceed without authorization from the copyright owner; if the use does not fall within fair use, permission is necessary.

The fair use analysis is always circumstantial and never entirely certain. For each of the four fair use factors below, determine whether each listed circumstance favors or disfavors fair use based on the specific material in question and the use desired. Licensed products and materials are governed by contracts that may limit or exclude provisions of Fair Use.

PURPOSE OF THE USE

Favoring Fair Use

Educational
  • Teaching (including multiple copies for classroom use)
  • Research
  • Scholarship
  • Criticism
  • Comment
Transformative or Productive Use
(Changes the work to serve a new purpose)
Nonprofit Use

Disfavoring Fair Use

Commercial, entertainment or other use
Verbatim or exact copy, not transformative.
Profit generating use

NATURE OF THE COPYRIGHTED MATERIAL

Favoring Fair Use

Factual, nonfiction, news
Published work

Disfavoring Fair Use

Creative or consumable work (art, music, feature film, fiction; workbook, case study or test)
Unpublished work

AMOUNT COPIED

Favoring Fair Use

Small quantity used (e.g. single chapter or journal article, other short excerpt (less than 10-15% of the whole work).
Portion used is not central to work as a whole
Amount is appropriate to the educational purpose

Disfavoring Fair Use

Large portion or entire work.
Portion used is central or the "heart" of the work
Includes more than necessary for educational purpose

EFFECT ON THE MARKET FOR THE ORIGINAL

Favoring Fair Use

No significant effect on the market or potential market for the copyrighted work.
One or few copies made and/or distributed
No longer in print; absence of licensing mechanism.
Restricted access (limited to students in a class or other appropriate group).
One-time, spontaneous use (no time to obtain permission).

Disfavoring Fair Use

Cumulative effect of copying would be to substitute for purchase of work.
Numerous copies are made and/or distributed.
Reasonably available licensing mechanism for obtaining permission exists (CCC license or off-prints for sale)
Copy will be available on the Web or otherwise broadly distributed.
Repeated or long-term use.

WARNING CONCERNING COPYRIGHT RESTRICTIONS

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted materials.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a reproduction. One of these specified conditions is that the reproduction is not to be "used for any purpose other than private study, scholarship, or research". If a person later uses a reproduction for purposes in excess of "fair use", that person may be liable for copyright infringement.

Complete *Checklist for Fair Use Analysis