Fair Use Checklist

Fair Use is defined in §107 of the U.S. Copyright Law. The four factors are weighted together in deciding whether or not something constitutes a Fair Use.

Purpose and Character

The Purpose and Character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. It is expected that materials going on E-Reserves are to be used to further classroom instruction. As such, this factor is unlikely to cause a Fair Use concern.

Favoring Fair Use Opposing Fair Use
Teaching (including multiple copies for classroom use) Commercial Activity
Research Profiting from the Use
Scholarship Entertainment
Nonprofit Educational Institution Bad-Faith Behavior
Criticism Not Crediting the Original Author
News reporting
Transformative or Productive use (changes work for new utility)
Restricted Access (to students or other appropriate group)


The Nature of the copyrighted work. This factor pertains specifically to the type of material that is being requested for E-Reserves.

Favoring Fair Use Opposing Fair Use
Published Work Unpublished Work
Factual or Nonfiction Based Highly Creative Work (art, music, novels, films, plays)
Important to Favored Educational Objectives Fiction

Amount and Substantiality

The Amount and Substantiality of the portion used in relation to the copyrighted work as a whole. Amount is measured both qualitatively and quantitatively. Copyright law does not define an exact allowable percentage of a work that can be used in E-Reserves. Quantity is evaluated in relation to the entire work. The smallest portion of the work that still supports the educational goal should be used.

Favoring Fair Use Opposing Fair Use
Small Quantity Large Portion or Whole Work Used
Portion Used Is Not Central to Work Portion Used Is Central to Work or Significant to Entire Work or Is the “Heart of the Work”
Amount is Appropriate for Favored Education Purpose


The Effect of the use upon the potential market for or value of the copyright work. If the use of an item on E-Reserves precludes the theoretical purchase of that item in the market, then this factor may weigh against Fair Use.

Favoring Fair Use Opposing Fair Use
User Owns Lawfully Acquired or Purchased Copy of Original Work Could Replace Sale of Copyrighted Work
One or Few Copies Made Significantly Impairs Market or Potential Market for Copyrighted Work or Derivative
No Significant Effect on the Market or Potential Market for Copyrighted Work Reasonably Available Licensing Mechanism for Use of the Copyrighted Work
No Similar Product Marketed by the Copyright Holder Affordable Permission Available for Using Work
Numerous Copies Made
Lack of Licensing Mechanism
You Made It Accessible on the Web or in Other Public Forum
Repeated or Long-Term Use

Some of the language of this checklist and description were borrowed from the University of Wisconsin-Madison, which, in turn, used language from the Copyright Management Center, IUPUI.


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