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Understanding Copyright

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Fair Use Factor Test

Four Factor Test

In determining whether or not a particular use is fair, the law states that at least four factors should be taken into consideration:

  • The purpose and character of the use
  • The nature of the work
  • The amount and substantiality of the portion used in relation to the work as a whole
  • The effect of the use on the market or potential market for the original work

Is the use fair?
If you want to use a work for an educational purpose, does this mean the use is fair?  No, not always.

The fair use analysis must consider all four factors and an educational use may not be fair, particularly if the use adversely impacts the market for the original work.

For example, making copies of an entire textbook so that students don't have to purchase their own copies of a text is not likely to be considered a fair use. Copying a few passages or a chapter of a textbook may be.

Will your use of a work mean that others do not have to purchase a copy of the work? Or will it otherwise impact the market for the work? If so, your use may not be a fair use.

As a practical guide:

  • Using a small portion of a work is favorable to using a substantial portion
  • Use of a work to provide commentary in an educational setting is favorable to using a work for commercial enterprise
  • Use of factual works is favored over using creative works of fiction
  • Minimal or negligible impact on the market for the work is generally viewed favorably

Remember that all four factors should be considered. 

Does a fair purpose equal fair use?
Maybe. A quick reading of the first sentence of the fair use provision in which several examples of purposes of use are listed often leads to an interpretation that using any copyrighted work for the purpose of teaching or research is a fair use. This is not correct.

The purpose of the use is one factor for consideration in determining whether or not a use is a fair use, but this is not the only consideration. Some educational uses of copyrighted works are fair uses, and some uses are not.

Is your use fair? 
Members of the academic community often rely on Section 107 for much of what they use for internal educational purposes. But as we move to educational models where course materials are distributed over the Internet or broadcast on educational television, fair use may no longer apply so broadly.  
In considering whether fair use is appropriate for your purpose, you should carefully consider how your use of copyrightable materials owned by others will impact an existing or potential market for the work, even if the work is used for non-commercial, educational purposes.


Adapted with permission from website Four Factor Test