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3.  1. Understand and explain the purpose of Fair Use.  2. Identify and explain the four factors of Fair Use.  3. Practice completing the Checklist for Fair Use and making Fair Use decisions.  4. Familiarize yourself with other copyright exemptions such as Sections 108— Reproductions by Libraries and Archives and 110— Exemption of certain [classroom] performances and displays.

4.  “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include—

5.  Fair use as defined in the Copyright Act and  Fair use as defined by several sets of guidelines designed for educators and librarians.  The same fair use analysis applies to all formats and mediums, including the digital environment, and includes not only the right of reproduction but also the rights of performance, display, modification, and distribution.

6.  There are four factors of fair use that are often referred to as the "four tests" for fair use defined in Section 107, title 17, U.S. Code  1.) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.  2.) The nature of the copyrighted work.  3.) The amount and substantiality of the portion used in relation to the copyrighted work as a whole  4.) The effect of the use upon the potential market for or value of the copyrighted work.  The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” (Title 17, Section 107 United States Code)

7.  If your proposed use is non-profit and educational, then this factor will weigh in your favor.  Education alone does not imply fair use, the other three factors must be considered as well.  There are some instances when educational purposes are for profit as well.

8.  This factor will normally weigh in favor of fair use if the proposed use is factual in nature, as opposed to works with more creative expression.  Fair use does not apply to standardized tests and workbooks, which are meant to be “consumed”.  Fair use applies to unpublished works as it does to published works, but the author's rights of first publication may be a factor weighing against fair use if a work is unpublished.

9.  This factor is deliberately flexible. There is no numerical or percentage limit on what is fair use.  Just remember, the more of the original that is taken, the more is taken away from the marketability of the original copyrighted work.

10.  Although all four factors of fair use are interrelated and each address important aspects, the fourth factor is often seen as most important.  It is often used as a “tie-breaker” if there is mixed opinions, then go to the  If the proposed use is likely to become widespread, and will negatively effect the market of the copyrighted material, then this factor would weigh against fair use.

11.  Use this checklist as a guideline  Checklist Checklist  Retrieved from: http://www.lib.byu.edu/departs/fairuse.pdf