Fair Use Considerations Worksheet
The University of North Carolina at Charlotte: Fair Use Considerations Worksheet
In trying to decide whether or not you may use portions of copyrighted works in your teaching and scholarship without having to obtain the specific permission of the copyright holder, you often must consider whether your proposed use meets the requirements of the fair use doctrine. The four elements of the fair use doctrine or, as they are more commonly known, the four fair use factors, are set forth in §107 of the Copyright Act and have been previously discussed here. Your obligation is to consider the factors in the context of your particular fact situation in a good-faith, reasonable manner, keeping in mind that reasonable minds can and do differ on whether any particular use is a fair one. Get used to ambiguity. You will never be 100% sure that your use is a fair use, but that level of certainty is not required. What is required is a thoughtful, good-faith, reasonable analysis. This worksheet is intended to assist you in making a "reasonable, good-faith fair use analysis and decision". It also serves as physical evidence that you attempted to comply with the law, even if a court or some other reasonable individual should differ with your conclusion. Fair Use Checklists, similar, if not even identical, are widely used throughout higher education by both librarians, in the context of electronic reserves and other library activities, and faculty, in the creation of their online courses and teaching. In some cases, use of a Fair Use Checklist is even required.
Another potentially valuable "side effect" of using and retaining the Fair Use Considerations Worksheet is its potential to qualify you, as an employee of a nonprofit educational institution, acting within the scope of your employment for the "Reasonable Good-Faith Fair Use" defense found in §504(c)(2) of the Copyright Act, explained elsewhere.
The Fair Use Considerations Checklist, however, is not intended as legal advice, which can only be provided by the Office of Legal Affairs.
Instructions
Check all boxes that apply; retain a copy of this form with the appropriate accompanying materials. Remember, you do not have to have all the factors in your favor in order to justify fair use. If the factors appears evenly split or you have questions, please contact the Office of Legal Affairs or the Scholarly Communications Librarian at Atkins Library.
Name: ______________________________________ Date:____________________________
Class or Project: ________________________________________________________________
Title of Copyrighted Work: ________________________________________________________
PURPOSE AND CHARACTER OF THE USE
Supports Fair Use Does Not Support Fair Use
O Educational O Commercial, entertainment, etc.
•Teaching (including multiple
copies for classroom use)
•Research
•Scholarship
•Criticism
•Comment
O Transformative Use O Nontransformative,/exact
(changes the work to serve a new purpose) copy
O Nonprofit use O Profit-generating use
Favors Fair Use ____ Does Not Favor Fair Use ____
NATURE OF THE COPYRIGHTED MATERIAL
Supports Fair Use Does Not Support Fair Use
O Factual, nonfiction, news O Creative (art, music, fiction), or
consumable (workbooks, tests
O Published work O Unpublished work
Favors Fair Use ____ Does Not Favor Fair Use ____
AMOUNT AND SUBSTANTIALITY OF PORTION USED IN RELATION TO WHOLE
Supports Fair Use Does Not Support Fair Use
O Small amount O Large portion or whole work
O Amount is appropriate for a favored O Portion used is qualitatively
educational use substantial
Favors Fair Use ____ Does Not Favor Fair Use
EFFECT ON THE MARKET FOR ORIGINAL
Supports Fair Use Does Not Support Fair Use
O No significant effect on the market O Replaces sale of copyrighted work
or potential market for the work
O No similar product marketed by O Significantly impairs market or
the copyright holder potential market for the work
O User owns lawfully acquired copy
O Copyright holder unidentifiable
Favors Fair Use ____ Does Not Favor Fair Use
Conclusion
Fair Use: ____ Not Fair Use: ____
Adapted from Cornell University's Checklist for Conducting A Fair Use Analysis Before Using Copyrighted Materials
