ALA

Fair Use


What is Fair Use?

The Fair Use Doctrine is one of the most important limitations on the exclusive rights of the copyright holder. It allows that copyright can be infringed because strict application of the law impedes the production and dissemination of works to the public. The Fair Use Doctrine was added as Section 107 of The Copyright Act of 1976 and was based on a history of judicial decisions that recognized that unauthorized infringements of copyright were "fair uses."

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Section 107 is not meant to be specific. Rather, Congress intended for fair use to be determined on a case-by-case basis. Congress also provided some illustrative examples of when a "fair use situation" might be more likely to occur. Educational and research activities are mentioned in particular as potential fair use scenarios, since these endeavors by their very nature build on the creation of new knowledge and creative work.

However, it should not be assumed that every use of a copyrighted work in an educational environment is a fair use. If a copyright holder claims that their copyright has been infringed, the defendant may argue a fair use defense. Ultimately, it is up to the court to make the final determination if a use is fair.

Fair Use should be actively exercised and considered on a case-by-case basis by weighing the four factors of fair use.

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Fair Use and Guidelines
by Daniel Lee

(Daniel Lee is an Undergraduate Services Librarian at the University of Arizona.)

Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty. Applying the statute to a particular proposed project can result in multiple, quite reasonable interpretations. In an effort to combat this uncertainty and make fair use more predictable, representatives of both copyright holders and consumers have often met to develop guidelines that provide the sort of specificity that many find desirable.

The most well known of these guidelines are the CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, adopted in 1978, and the Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (often referred to as the "Classroom Guidelines"), adopted in 1976. More recently, attempts were made to reach similar agreements for educational multimedia, electronic reserve, and distance learning. For the most part, agreement could not be reached as copyright owners believed the proposed guidelines to be overly permissive, and library and educational representatives found the proposals to be too restrictive.

The failure of the recent negotiations and almost 25 years of experience with the earlier guidelines have led many to conclude that fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help.

The Classroom Guidelines, for example, promote limits based on brevity, spontaneity, and cumulative effect. None of these concepts are found in the statute. Further, each of these new concepts come with specific quantitative limits unintended by Congress, such as word counts, successive semesters, and the number of articles from a collection.

Like many of the more recent draft guidelines, the Classroom Guidelines purport "to state the minimum and not the maximum standards of educational fair use under Section 107." Put into practice, however, these limits become upper bounds on uses that are regarded as legitimate, as courts often look to common practice to set standards. In cases involving commercial copy centers that create course packs, the courts have interpreted these Guidelines as defining ceilings to support findings of infringement.

The guidelines, then, end up displacing the law itself with standards that have little or no relationship to the definition in the statute.

Given the lack of flexibility that results from negotiated guidelines, busy librarians and educators who are looking for quick or definitive answers are, in fact, better served by performing a fair use analysis that addresses the four factors in the statute. Some help in doing so is available from the Fair Use Worksheet at Indiana University-Purdue University, Indianapolis’s Copyright Management Center http://www.iupui.edu/~copyinfo/fucheckintro.html and the University of Massachusetts, Amherst’s Foreign Language Resource Center’s Fair Use Chart http://www.umass.edu/langctr/fu.html

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