Using Fair Use Checklist as Roadmap | evanm | August 08, 2012

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Using Fair Use Checklist as Roadmap

The original authors of the Fair Use Checklist suggest that faculty members use it as a tool to determine whether they are permitted to copy material without first gaining permission. Do you think the authors of the checklist are expecting too much from faculty?

Columbia University's Copyright Advisory Office suggests that their checklist should be used as a "roadmap."

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Do you see anything problematic with this suggested use of the list? Is it practical to expect faculty members from fields unrelated to the law to consider "the relative persuasive strength of the circumstances" and to draw a conclusion regarding whether use of material is fair?

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May 21, 2013

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