Understanding “Fair Use”
The principle privilege of a copyright owner is the right to prohibit others from reproducing, distributing, displaying, or performing the copyrighted work. Over the years, courts have granted exceptions in special cases for people to perform, distribute, display, or make copies of all or parts of copyrighted works without the permission of the copyright owner. Collectively, these special cases are referred to as “fair use.”
Fair Use Statute
After judicial precedent established the doctrine of fair use, it was subsequently written into the U.S. copyright statutes. Section 107 of Title 17 U.S. Code states that it is not an infringement of copyright to reproduce a copyrighted work for purposes such as:
- criticism
- comment
- news reporting
- teaching (including multiple copies for classroom use)
- scholarship
- research
The law acknowledges that this definition is subject to interpretation, and therefore, lays down the factors to be considered in determining fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
The U.S. Copyright Office’s factsheet FL-102 gives examples of situations that can be considered fair use:
- Quoting excerpts in a review or criticism for illustration or comment
- Quoting short passages in a scholarly or technical work for illustration or clarification of the author’s observations
- Using some of the content of a work in a parody of it
- Summarizing an address or article in a news report with brief quotations
- A library’s reproducing a portion of a work to replace part of a damaged copy
- A teacher’s or student’s reproducing a small part of a work to illustrate a lesson
- Reproducing a work in legislative or judicial proceedings or reports
- Incidentally reproducing a work, as in a newsreel or broadcast when the work is located in the scene of an event being reported.
Statutory Exceptions in Addition to Fair Use
Copyright law also provides for the legal copying, performance or distribution of copyrighted works in other very specific circumstances defined in Title 17, Sections 108 through 112:
- The right of libraries and archives to make archival copies of certain types of works under specific circumstances
- The right of a person who has legally purchased a copy of a copyrighted work to sell that copy, with a specific prohibition against renting or leasing copyrighted music or computer software without permission (except libraries under specific conditions)
- The rights of teachers or pupils to display or perform copyrighted works in a legitimate, live classroom setting and in distance learning activities under certain conditions
- The right for certain works of a religious nature to be displayed or performed during a religious service
- The right for non-profits to perform certain types of works and for the non-profit to accept donations in conjunction with the performance under specific circumstances
- The right for most commercial establishments to have a radio or television playing where it can be seen or heard by patrons provided there is no charge for listening or viewing and the broadcast is not retransmitted
- The right for a governmental body or non-profit agricultural or horticultural organization to perform non-dramatic musical works at their annual agricultural fair or exhibition
- The right of music retailers to play copyrighted musical works where they are offered for sale
- The right to provide adaptations of works for the blind or the deaf when it is not for commercial advantage and over specific types of networks
- The rights of cable systems, hotels, apartment buildings and certain other entities to rebroadcast copyrighted television broadcasts
- The rights of a broadcaster to make copies of a work as may be necessary to facilitate legal broadcasting or transmission.
The Conference on Fair Use
In 1994, the Conference on Fair Use (”CONFU”) was created under the auspices of the Information Infrastructure Task Force established by President Clinton. Over a four-year period, a wide range of CONFU participants from the public and private sectors attempted to draft general guidelines on fair use relating to:
- Digital images
- Distance learning
- Educational multimedia
- Electronic reserve systems
- Interlibrary loan and document delivery
- Use of computer software in libraries
It was a gargantuan task undertaken by many people with sometimes competing interests. After lengthy and lively debate, CONFU was able to draft fair use guidelines only regarding digital images and distance learning. It created partial guidelines for educational multimedia, and “scenarios” for use of computer software in libraries. Some viewed the effort a failure for its inability to achieve its lofty objectives. Others considered it a success that such a disparate membership was able to agree on any guidelines at all.
In the end, the guidelines CONFU developed have no force of law and there is no guarantee that someone following the guidelines couldn’t be successfully sued for copyright infringement. But the guidelines are so conservative, they often advise against uses where there is any hint of potential infringement, even though a court could potentially consider them fair use. Because of this conservatism, many educational institutions have adopted or amended the guidelines for use by their students and staff.
Determining Fair Use
Ultimately, fair use is determined by a court based on the specific facts surrounding an alleged copyright infringement. Until a copyright owner contacts you asking you to stop violating his or her copyright, the matter of fair use is pragmatically moot. When a copyright owner complains, most people would stop using the copyrighted work unless they felt very certain their use falls clearly into one of the special cases that have been given exemptions by previous courts.
As a practical matter, when there is no appreciable economic gain or loss, the parties to a fair use dispute will usually come to a meeting of the minds one way or the other long before the issue comes before a court.
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