Fair Use is defined in §107 of the U.S. Copyright Law. The four factors are weighted together in deciding whether or not something constitutes a Fair Use.
Purpose and Character
The Purpose and Character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. It is expected that materials going on E-Reserves are to be used to further classroom instruction. As such, this factor is unlikely to cause a Fair Use concern.
Favoring Fair Use |
Opposing Fair Use |
Teaching (including multiple copies for classroom use) |
Commercial Activity |
Research |
Profiting from the Use |
Scholarship |
Entertainment |
Nonprofit Educational Institution |
Bad-Faith Behavior |
Criticism |
Not Crediting the Original Author |
Comment |
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News reporting |
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Transformative or Productive use (changes work for new utility) |
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Restricted Access (to students or other appropriate group) |
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Parody |
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Nature
The Nature of the copyrighted work. This factor pertains specifically to the type of material that is being requested for E-Reserves.
Favoring Fair Use |
Opposing Fair Use |
Published Work |
Unpublished Work |
Factual or Nonfiction Based |
Highly Creative Work (art, music, novels, films, plays) |
Important to Favored Educational Objectives |
Fiction |
Amount and Substantiality
The Amount and Substantiality of the portion used in relation to the copyrighted work as a whole. Amount is measured both qualitatively and quantitatively. Copyright law does not define an exact allowable percentage of a work that can be used in E-Reserves. Quantity is evaluated in relation to the entire work. The smallest portion of the work that still supports the educational goal should be used.
Favoring Fair Use |
Opposing Fair Use |
Small Quantity |
Large Portion or Whole Work Used |
Portion Used Is Not Central to Work |
Portion Used Is Central to Work or Significant to Entire Work or Is the “Heart of the Work” |
Amount is Appropriate for Favored Education Purpose |
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Effect
The Effect of the use upon the potential market for or value of the copyright work. If the use of an item on E-Reserves precludes the theoretical purchase of that item in the market, then this factor may weigh against Fair Use.
Favoring Fair Use |
Opposing Fair Use |
User Owns Lawfully Acquired or Purchased Copy of Original Work |
Could Replace Sale of Copyrighted Work |
One or Few Copies Made |
Significantly Impairs Market or Potential Market for Copyrighted Work or Derivative |
No Significant Effect on the Market or Potential Market for Copyrighted Work |
Reasonably Available Licensing Mechanism for Use of the Copyrighted Work |
No Similar Product Marketed by the Copyright Holder |
Affordable Permission Available for Using Work |
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Numerous Copies Made |
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Lack of Licensing Mechanism |
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You Made It Accessible on the Web or in Other Public Forum |
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Repeated or Long-Term Use |
Some of the language of this checklist and description were borrowed from the University of Wisconsin-Madison, which, in turn, used language from the Copyright Management Center, IUPUI.