what are four factors used to determine if use of copyrighted material is "fair use" or not?

Fair Utilize

Fair use may not be what yous expect. Whether or not yous are inside the boundaries of off-white use depends on the facts of your item situation. What exactly are y'all using? How widely are you lot sharing the materials? Are you confining your piece of work to the nonprofit environs of the university?

To determine whether you are within fair utilize, the constabulary calls for a balanced awarding of four factors. These iv factors come directly from the fair use provision, Section 107 of the U.Due south. Copyright Act and they take been examined and developed in judicial decisions. The following summaries identify and explain the significance of the factors as they relate to many university needs.  For more information about how to apply the factors in fair utilise, see the Fair Utilise Checklist.

Fair Use is a Balancing Test

To decide whether a use is or is not a fair utilize, always keep in heed that yous need to apply all four factors. For example, practise non spring to a decision based simply on whether your use is educational or commercial. You still need to evaluate, apply, and counterbalance in the balance the nature of the copyrighted work, the corporeality or substantiality of the portion used, and the potential impact of the use on the market place or value of the work. This flexible approach to fair utilize is disquisitional in order for the constabulary to accommodate to changing technologies and to come across innovative needs of higher education. Not all factors need to weigh either for or confronting off-white use, simply overall the factors will usually lean i management or the other. Besides, the relative importance of the factors is not e'er the same. Your analysis should guide you to a conclusion.

• Factor 1: The Purpose and Character of the Use

• Factor 2: The Nature of the Copyrighted Work

• Factor 3: The Amount or Substantiality of the Portion Used

• Cistron 4: The Effect of the Utilise on the Potential Market place for or Value of the Work

• Resources

Factor 1: The Purpose and Character of the Use

The fair utilise statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes specially appropriate for fair employ, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. Just exist conscientious: Non all nonprofit educational uses are "fair." A finding of off-white use depends on an application of all iv factors, not simply the purpose. Still, limiting your purpose to some of these activities volition be an of import part of challenge fair use.

Courts also favor uses that are "transformative," or that are not but reproductions. Fair apply is more than likely to be institute when the copyrighted work is "transformed" into something new or of new utility or significant, such as quotations incorporated into a paper, or mayhap pieces of a piece of work mixed into a multimedia product for your own instruction needs or included in commentary or criticism of the original.

Factor 2: The Nature of the Copyrighted Piece of work

This factor centers on the work beingness used, and the constabulary allows for a wider or narrower scope of off-white use, depending on the characteristics or attributes of the work. For example, the unpublished "nature" of a work, such every bit private correspondence or a manuscript, tin can weigh against a finding of fair use. The courts reason that copyright owners should have the correct to determine the circumstances of "get-go publication." Utilise of a work that is commercially available specifically for the educational marketplace is by and large disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair utilize applies more broadly to nonfiction, rather than fiction. Courts are unremarkably more than protective of art, music, poetry, feature films, and other artistic works than they might be of nonfiction works.

Factor 3: The Amount or Substantiality of the Portion Used

Although the constabulary does not set verbal quantity limits, generally the more you use, the less likely you are within off-white use. The "amount" used is normally evaluated relative to the length of the unabridged original and in light of the corporeality needed to serve a proper objective. Even so, sometimes the exact "original" is not always obvious. A volume chapter might be a relatively pocket-sized portion of the book, only the same content might be published elsewhere as an article or essay and exist considered the unabridged work in that context. The "amount" of a work is likewise measured in qualitative terms.

Courts have ruled that even uses of small amounts may be excessive if they accept the "heart of the work." For example, a short clip from a move film may usually be acceptable, merely not if information technology encompasses the most boggling or artistic elements of the film. Similarly, it might exist acceptable to quote a relatively small portion of a magazine article, simply not if what y'all are quoting is the journalistic "scoop." On the other paw, in some contexts, such every bit critical annotate or parody, copying an entire work may exist acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, considering a user usually needs the full paradigm, or the total "corporeality," and this may not be a fair use. On the other paw, a court has ruled that a "thumbnail" or low-resolution version of an image is a lesser "amount." Such a version of an prototype might adequately serve educational or research purposes.

Factor four: The Effect of the Employ on the Potential Market for or Value of the Work

Effect on the market place is peradventure more than complicated than the other three factors. Fundamentally, this gene means that if you could have realistically purchased or licensed the copyrighted piece of work, that fact weighs against a finding of off-white employ. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably bachelor for purchase or licensing. A piece of work may exist reasonably bachelor if you lot are using a big portion of a book that is for sale at a typical market price. "Event" is also closely linked to "purpose." If your purpose is enquiry or scholarship, market outcome may be hard to prove. If your purpose is commercial, then agin market effect may exist easier to testify. Occasional quotations or photocopies may have no agin market place effects, but reproductions of entire software works and videos tin brand direct inroads on the potential markets for those works.

Resource

This folio is licensed by a Creative Commons Attribution License with attribution to its author Dr. Kenneth D. Crews (formerly of Columbia Academy).

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Source: https://copyright.columbia.edu/basics/fair-use.html

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