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 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
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
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
Remember that all four factors should be considered. For help with this analysis,
TechTransfer Digital Ventures.
Fair purpose, fair use?
Maybe. This question comes up a lot and it arises from a casual reading of the
first sentence of the fair use provision in which several examples of purposes
of use are listed. This often yields 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 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.
Educators and the institutions they work for are held to higher standards if
they wish to use copyrighted materials without permission (see the TEACH
Act section for more information).
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.
Reliance on fair use to incorporate the works of others in multimedia or digital
content to be commercialized or distributed broadly may not be appropriate.
For assistance on evaluating whether or not fair use applies to your project,
TechTransfer Digital Ventures.