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Fair Use: Factor 4: Market

In some cases, I don’t actually need to ask for permission to use others’ content?!

Factor 4: Potential Market of the Work

The effect of the use upon the potential market for or value of the copyrighted work.

If the use of the content in your work will take away income from the original work’s format, it is less likely of consideration for fair use. A better situation would be if your work will either cause no effect on or will increase the potential market for that work.

Example: E-reserves Chapter for Class

Scenario

Professor Kassabian is teaching an online course about global health. For a segment on pandemics, he would like the class to read a chapter from Spillover: Animal Infections and the Next Human Pandemic by David Quammen (Norton, 2012). He photocopied the chapter from his copy of the book and asked the library to scan the copy to PDF and place it on e-reserve. The scanned copy of the chapter includes the book's title and copyright information of the book, and the course syllabus provides a complete citation for the chapter. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

No, Professor Kassabian's use is not transformative, since he is using the chapter for the same reason as its original purpose—to convey information about the danger of potential pandemics.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Even though Professor Kassabian's use is not transformative, he is using the material to instruct students at a nonprofit educational institution, a favored purpose for fair use. In addition, the chapter is a work of nonfiction and is factual in nature, which also favors fair use. Professor Kassabian's decision to use only one chapter of the work also favors fair use, as this is not likely replace sales of the book, especially since the book was not marketed as a textbook. In fact, Professor Kassabian's use of the chapter might improve the market for the book if students decide to purchase copies in order to read further. The fair use argument is strengthened because the chapter was not placed on the open web but limited through the library's e-reserve system to registered borrowers and because the professor clearly acknowledged the source, copyright, and publisher.

Fair use: Yes.

  • Last Updated: Feb 10, 2021 10:28 AM
  • URL: https://guides.lib.unc.edu/fair-use