2. The nature of the copyrighted work – fiction or factual or a combination; Works that are unpublished are less likely to qualify as fair use. Excerpts of informational and factual works for educational purposes are more likely to qualify as fair use. Use of materials such as test forms or workbook pages that are intended to be used and repurchased are less likely to qualify as fair use. 3. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and The amount of the work is analyzed both quantitatively and qualitatively. There is not a hard and fast line for the portion of the work that may be used, but the portion of the work to be used should be narrowly tailored to meet the educational purpose. 4. The effect of the use upon the potential market for, or value of, the copyrighted work. The impact on the value of the work is closely linked to the purpose of the use, and considers whether the use impacts the creator's ability to make a living from the work. If the work is being used for a commercial purpose, any adverse effect on the creator's ability to earn money from the work weighs against fair use. Producing copies of an entire work to save money for students is almost never a fair use. Similarly, if a digital, academic license for excerpts is available for a reasonable price, then use of the excerpt is likely not a fair use. All four factors must be considered to determine whether each use is a fair use. Each factor is given equal weight. The goal is to achieve a balance between the rights of the copyright holder with the rights of the public. Fair use is also technologically neutral so the same analysis may be applied to any medium. This link (https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html) includes a checklist you may find helpful in determining whether your activity(s) is within the limits of fair use under U.S. copyright law. Another resourceful checklist can be found here (https://www.lib.purdue.edu/uco/fair-use). d. Other Exceptions for Use of Copyrighted Materials These exceptions may be relevant for some use of copyrighted material. • Reproduction by libraries and archives (http://www.copyright.gov/title17/92chap1.html#108) • Effect of transfer of particular copy or phonorecord (http://www.copyright.gov/title17/92chap1.html#109) • Exemption of certain performances and displays (http://www.copyright.gov/title17/92chap1.html#110) • Secondary transmissions of broadcast programming by cable (http://www.copyright.gov/title17/92chap1.html#111) • Ephemeral recordings (http://www.copyright.gov/title17/92chap1.html#112) • Computer programs (http://www.copyright.gov/title17/92chap1.html#117) • Secondary transmissions of distant television programming by satellite (http://www.copyright.gov/title17/92chap1.html#119)
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