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Copyright and Fair Use Basics: E-Reserves: Fair Use Checklist

Basic information on Copyright and Fair Use.

Fair Use and E-Reserves

‚ÄčTo determine if an e-reserve is fair use, consider the character of the use, the nature of the work to be used, the amount used in proportion to the whole and the impact on the market for the work. Librarians and professors balance their own interests with the copyright owners' interests. This summary illustrates ways in which libraries can apply fair use criteria in the development of best practices for e-reserves.

  1. First factor: The character of the use
    • Libraries implement e-reserves systems in support of non-profit education.
  2. Second factor: The nature of the work to be used
    • E-reserve systems include text materials, both factual and creative.
    • They also serve the interests of faculty and students who study music, film, art, and images.
    • Librarians and professors take the character of the materials into consideration in the overall balancing of interests.
  3. Third factor: The amount used
    • Librarians and professors consider the relationship of the amount used to the whole of the copyright owner's work.
    • Because the amount that a faculty member assigns depends on many factors, such as relevance to the teaching objective and the overall amount of material assigned, professors may also consider whether the amount, even the entire work, is appropriate to support the lesson or make the point.
  4. Fourth factor: The effect of the use on the market for or value of the work
    • Many libraries limit e-reserves access to students within the institution or within a particular class or classes. Many use technology to restrict and/or block access to help ensure that only registered students access the content.
    • Libraries generally terminate student access at the end of a relevant term (semester, quarter, or year) or after the student has completed the course.
    • Many e-reserves systems include core and supplemental materials. Limiting e-reserves solely to supplemental readings is not necessary since potential harm to the market is considered regardless of the status of the material.
    • Libraries may determine that if the first three factors show that a use is clearly fair, the fourth factor does not weigh as heavily.
Adapted from ALA 

Using the Checklist

Introduction to the Checklist

The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). The four factors form the structure of this checklist.  Congress and courts have offered some insight into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of Using the Checklist

A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as a Road Map

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Caveat

This checklist is provided as a tool to assist you when undertaking a fair use analysis.  The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair.  Each factor should be given careful consideration in analyzing any specific use.  There is no magic formula; an arithmetic approach to the application of the four factors should not be used.  Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.

Fair Use Checklist

Purpose

Favoring Fair Use

  • Teaching (including multiple copies for classroom use)
  • Research
  • Scholarship
  • Nonprofit educational institution
  • Criticism
  • Comment
  • News reporting
  • Transformative or productive use (changes the work for new utility)
  • Restricted access (to students or other appropriate group)
  • Parody

Opposing Fair Use

  • Commercial activity
  • Profiting from the use
  • Entertainment
  • Bad-faith behavior
  • Denying credit to original author

Nature

Favoring Fair Use

  • Published work
  • Factual or nonfiction based
  • Important to favored educational objectives

Opposing Fair Use

  • Unpublished work
  • Highly creative work (art, music, novels, films, plays)
  • Fiction

Effect

Favoring Fair Use

  • User owns lawfully purchased or acquired copy of original work
  • One or few copies made
  • No significant effect on the market or potential market for copyrighted work
  • No similar product marketed by the copyright holder
  • Lack of licensing mechanism

Opposing Fair Use

  • Could replace sale of copyrighted work
  • Significantly impairs market or potential market for copyrighted work or derivative
  • Reasonable available licensing mechanism for use of the copyrighted work
  • Affordable permission available for using work
  • Numerous copies made
  • You made it accessible on the Web or in other public forum
  • Repeated or long-term use

Amount

Favoring Fair Use

  • Small quantity
  • Portion used is not central or significant to entire work
  • Amount is appropriate for favored educational purpose

Opposing Fair Use

  • Large portion or whole work used
  • Portion used is central to or "heart of the work"

Creative Commons

The Checklist and this introduction is licensed by a Creative Commons Attribution License with attribution to the original creators of the checklist Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville). Creative Commons License