The second fair use factor examines the nature of the copyrighted work, noting that published works receive less protection than unpublished ones. It asserts that factual works have even less protection than fictional or fantastical creations. The text emphasizes that while less protection is afforded, some level of protection still exists for expressive arrangements of facts. Anthropic acknowledges that the authors' works contain expressive elements, which were chosen for training purposes of specific language models, indicating a significant consideration for the nature of the works in fair use assessments.
The nature of the copyrighted work indicates that some works are closer to intended copyright protection, making fair use harder to establish in those cases.
Less protection is afforded to published works than unpublished ones, and factual works receive less protection than fiction or fantasy.
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