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I am writing a reading comprehension book for students. This book is for-profit. I would like to use excerpts from copyrighted literature books to set up comprehension questions as a learning exercise.

From what I've read, there would be 3 factors in favor of this being fair-use: 1) I'm using very small portions of each work 2) My re-use would not affect the market for the original work 3) I'm attempting to create something new from the original (the comprehension exercises).

Factors against fair use would be that this is a commercial project and that I would be using many excerpts albeit from different works. Overall, would this constitute fair use?

closed as off-topic by bdb484, Nij, A. K., feetwet Dec 4 '18 at 3:59

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From the pattern of rulings in appeals, it appears that the 4 factors are not weighed equally: commercial use appears to weigh more than "nature of the original", to give an example. Assuming that you read the canonical Q&A under fair use, we can't really be more specific than that, without getting the kind of specific detail that you would need to provide your attorney in order to get proper legal advice. Bear in mind that "educational" and "for-profit" are not mutually exclusive.

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Fair use judgements are always highly fact-dependent, and it is rarely possible to be certain what a court's decision would be in advance of an actual case. See this answer folr more on fair use here on law.se.

Note that a claim of fair use only arises after an alleged infringer has been sued by the copyright holder. Fair use is an active defense that must be specifically raised by the defendant. Note also that fair use is a very specifically US legal concept. The somewhat similar concepts in the laws of other countries are significantly different in detail, and are generally less favorable to the defense.

A person contemplating a fair use justification for using copyrighted content would be wise to consult a lawyer with experience in copyright law.

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