Introduction to Fair Use

What are the Goals of this Introduction

The goals of this page are:

• to present material and resources on Fair Use, so as to educate those new to the concept and to remind others of its history and basic rules;
  
• to assemble the texts of the proposed guidelines for fair use of digital materials, to be presented before the assembled Conference on Fair Use May 19, 1997, alongside endorsements and commentaries by those in the field as to the benefits and problems of these guidelines, thus providing a forum for community members to share each other's thoughts on CONFU and the proposed guidelines;
  
• to offer support to, and a gathering repository of resource materials for, a series of Town Meetings held across the country from February 1997 to February 1998, designed to educate consituencies about the changes to fair use proposed in these guidelines and to elicit community response.

What is Copyright?

The function of copyright, as its name implies, is that it guarantees for the creator of a work the rights to copy, reproduce and distribute it. In the U.S., this guarantee is rooted in the Constitution. However, from its legal origins (in England in 1710 and in the U.S. in 1790) copyright was as much about the promotion and circulation of knowledge and good ideas as it was about the protection and rewarding of creators. Limitations and exemptions to creators' copyright protection were as important to society as the protection itself.

Copyright protection applies not to facts nor to ideas but to the particular expression of ideas in a tangible medium. The duration of copyright protection is for the lifetime of a creator plus 50 years (although legislation is before Congress to extend that protection for a further 20 years). Creators have the exclusive rights to reproduce their work, to prepare derivative works, to distribute copies, and to perform and display their work publicly. Creators can and usually do assign their rights to others for commercial exploitation of their creations.

The rights of copyright holders are spelled out in Section 106 of Copyright Law (Section 106 of Chapter 1 of Title 17 of the U.S. Code, to be precise).

What is Fair Use?

There are certain specified limitations to the rights of copyright holders, each of which are addressed by different sections of copyright law. These include: Fair Use (Section 107); reproduction by libraries and archives (Section 108); and "First Sale," or the transfer of a legally acquired copy of a work (Section 109). For certain uses, users do not have to seek permission from copyright owners to use material.

Fair Use of copyright material is allowed for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

To judge whether a use of copyright material is fair use or not, the law provides for a four factor test.

What are the Four Factors?

The Four Factors laid down by Section 107 of copyright law are those to be used to determine whether a use of copyright material in a particular case is a "fair use" or not.

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.

Only the courts can determine whether a particular use is a fair use or not.

Douglas Bennett, in a section of the essay, "Fair Use in Digital Environments," reproduced on this page, speaks about the 1976 effort to produce guidelines for the fair use of material.

What are some Landmark Fair Use Court Cases?

The following are some of the most important recent court cases that have helped define fair use. The links here are to case law and judicial opinions assembled by the Stanford University Copyright and Fair Use Web site.

The source of the summary notes here is the highly recommended Timeline: A History of Copyright in the U.S., produced by the Association of Research Libraries.

• PRINCETON UNIVERSITY PRESS v. MICHIGAN DOCUMENT SERVICES, INC. 1996
  "In February 1996, the Sixth Circuit Court of Appeals ruled that an off-campus, for-profit photocopy shop may, as a matter of fair use, make coursepacks that include substantial portions of copyright protected books and sell them to students. On April 9, 1996 the judges of the Sixth Circuit Court of Appeals voted to rehear this case en banc. The effect of that vote is to vacate the previous decision from the Sixth Circuit, leaving in force a previous injunction issued by the District Court. The case was reheard June 12, 1996.

  In May 1996, an amicus brief was filed in the case on behalf of the educational community by the Attorney General of the State of Georgia, the National School Board Association, the Georgia and California School Boards Associations, and the American Association of School Administrators. ARL filed a letter with the U.S. Court of Appeals for the Sixth Circuit to express its strong support for the important basic principles expressed in the brief of these amici. The American Library Association joined ARL in filing this letter. The ARL-ALA letter calls on the court to take note of the broader issues raised in the case and the significant public interests affected. "If the public did not have the ability to exercise . . . fair use rights," the letter states, "education, scholarly research and the progress of science and the arts would be severely inhibited, and the usefulness - and inevitably the value - of the copyrighted works concerned would be substantially diminished."

• AMERICAN GEOPHYSICAL UNION v. TEXACO INC. 1995
  " In July 1992, a U.S. District judge ruled in the seven-year old copyright case that a Texaco scientist violated the U.S. Copyright Law (Section 107) when he copied articles without providing the appropriate fee to the publishers. Texaco argued that the copying fell within fair use. The court ruled that the profit motive of the company was a relevant consideration in the analysis of the purpose of the use. They also found against Texaco in considering the amount of the work used focusing on the article as the "whole work" rather than the journal it came from. They also found that the market was affected because Texaco could have paid royalties through the Copyright Clearance Center.

  "In 1994, the U.S. Court of Appeals for the Second Circuit upheld the lower court decision. In April 1995, Texaco petitioned the U.S. Supreme Court to review the case. On May 15, 1995, Texaco and a steering committee representing the publishers announced that they have agreed upon terms to settle the case. Texaco, will pay a seven-figure settlement and retroactive licensing fee to the CCC. In addition, Texaco will enter into standard annual license agreements with the CCC."
  
  

• BASIC BOOKS V. KINKO'S GRAPHICS CORPORATION, 1991
  "A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied "coursepacks" that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that coursepacks cannot constitute fair use in other circumstances. "

Why is Fair Use suddenly so important on the Internet?

With the rapid growth of on-line traffic, and the ability of on-line users to copy, change and re-distribute material very easily, many creators and owners have withheld their work from the Internet for fear of its being pirated and abused. The fear of piracy and misappropriation of work was a very strong impetus behind the 1995 proposed revision of the copyright law, known as the National Information Infrastructure Copyright Protection Act.

This bill proposed adding a new "transmission right" for owners, but appeared relatively unconcerned about fair use and other rights limitations. For discussion of this bill, see the NINCH Newsletter from June 1996 as well as material on the home page of the Digital Future Coalition.

This bill was not passed by the 104th Congress. Whether it will be re-introduced, and in what form, in the 105th Congress is still to be determined.

What is the Conference on Fair Use?

See the section of Douglas Bennett's essay, "Fair Use in Digital Environments," that explains CONFU (the Conference on Fair Use).

Also see "A Review of the Conference on Fair Use and Proposed Guidelines," a personal account by Virginia M.G. Hall and Kathe Albrecht, for the members of the Visual Resources Association, published in February 1997.

And see the section, "The CONFU Process" from the December 1996 "Interim Report" on the Conference on Fair Use by Peter Fowler.

What is the Relationship between Fair Use Guidelines and Legislation?

While any endorsed and formally accepted CONFU Guidelines have no force of law, they, in the form of a CONFU Final Report, will be submitted as part of legislative history and thus can be referenced in connection with the Copyright Act provisions on fair use. However, determination of whether a use is "fair use" or not will be determined by the courts, based on the Four-Factor analysis. Guidelines would not have the force of law in any legal determination.

What Happens Next?

After the Conference on Fair Use meets May 19, 1997 to consider the endorsements or rejections of the three sets of proposed guidelines, the community will have in its possession a body of material representing a measure of agreement and disagreement about the practice of the educational fair use of digital materials. Court cases and the passage of time with new technical and social developments will add to the understanding that practitioners will have as to what does and does not constitute fair use when applied to digital materials.

Included in the "Interim Report" was a recommendation that "the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force, or another appropriate federal government body, should consider convening another conference on fair use within five years to address both those areas of concern where participants did not, or were unable to, reach agreement on fair use guidelines and any other concerns regarding fair use at that time."

Many, however, feel that should another body be convened it should have the weight of Congressional authority.