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Fair Use Question Of The Month: What About Four Factor Checklists?

This month's fair use question comes from a librarian who is creating guidelines for faculty on how to use copyrighted material in their university's library on classroom Blackboard sites. This question is also featured in Reclaiming Fair Use.




Dear Center for Social Media,

I've been asked to create some guidelines for faculty at my university on using copyrighted material in our library  on their Blackboard sites for classes. I've seen a number of "four factor" checklists, and think this might be a solution, especially since faculty want clear, bright-line advice. I could design a simple step-through process to take them through the four factors online. Would this be a helpful approach?


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No, the most helpful approach will be to help people understand the reasoning that governs a fair-use decision, summarized in the following questions:

- Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose and for the same audience? (If so, it probably adds something new to the cultural pool.)

- Was the amount of material taken appropriate to the purpose of the use? (Can the purpose be clearly articulated? Was the amount taken proportional? Or was it too much?)

- Was it reasonable within the field or discipline it was made in?

People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years. Professors are fully capable of making reasoned decisions about what to post to their own class sites.

This is a particularly safe environment, too. These sites are typically passworded and limited only to students enrolled in the class. The professors should ask if the material selected is being repurposed, and if so what that repurpose is, associated with their teaching objective for the class. Then they will ask if the amount taken is appropriate to their need. Our new Code of Best Practices for Academic and Research Libraries addresses this topic in its first principle, "Supporting Teaching and Learning with Access to Library Material Via Digital Technologies". You can find the code here.    

Where the faculty may need help is in knowing which of the materials they are using were designed specifically for the educational environment they are teaching in (for instance a text written for their subject), and if any of the media they use was licensed with terms that rule out fair use. For more resources, you can find the Code of Best Practices, FAQs, Slideshows, and an Introduction to Fair Use video on our website.