The Fair Use Statute,
Section 107 of the Copyright Act of 1976.
Limitations on exclusive rights: Fair use:
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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 -
-
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; and
-
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a work is unpublished shall not itself bar a finding of fair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.
Copyright Law of the United States of America and Related
Laws
Contained in Title 17 of the United States Code
A central
tenet of this analysis is that fair use is a flexible doctrine
that Congress wanted us to test and adapt for changing needs
and circumstances. The law provides no clear and direct
answers about the scope of fair use and its meaning in
specific situations. Instead, we are compelled to return to
the four factors and reach creative and responsible
conclusions about the lawfulness of our activities. People
will always differ widely on the applicability of fair use,
but any reliable evaluation of fair use must depend upon a
reasoned analysis of the four factors of fair use. The four
factors also need not lean in one direction. If most factors
lean in favor of fair use, the activity is allowed; if most
lean in the opposite direction, the action will not fit the
fair-use exception and may require permission from the
copyright owner.
While fair use
is intended to apply to teaching, research, and other such
activities, a crucial point is that an educational purpose
alone does not make a use fair. The purpose of the use is, in
fact, only one of four factors that users must analyze in
order to conclude whether or not an activity is lawful.
Moreover, each
of the factors is subject to interpretation as courts struggle
to make sense of the law. Some interpretations, and their
subsequent reconstruction by policy-makers and interest
groups, have been especially problematic. For example, some
copyright analysts have concluded that if a work being used is
a commercial product, the "nature" factor weighs against fair
use. By that measure, no clip from a feature film or copy from
a trade book could survive that fair-use factor. Similarly,
some commentators argue that if a license for the intended use
is available from the copyright owner, the action will
directly conflict with the market for licensing the original.
Thus, the availability of a license will itself tip the
"effect" factor against fair use. Neither of these simplistic
constructions of fair use is a valid generalization, yet they
are rooted in some truths under limited circumstances. Only
one conclusion about the four factors is reliable: each
situation must be evaluated in light of the specific facts
presented.
The following
are brief explanations of the four factors from the fair-use
statute. All four factors which affect fair use must be taken
into account before reaching a conclusion.
Congress
favored nonprofit educational uses over commercial uses.
Copies used in education, but made or sold at monetary profit,
may not be favored. Courts also favor uses that are
"transformative" or that are not mere reproductions. Fair use
is more likely when the copyrighted work is "transformed" into
something new or of new utility, such as quotations
incorporated into a paper, and perhaps pieces of a work mixed
into a multimedia product for your own teaching needs or
included in commentary or criticism of the original. For
teaching purposes, however, multiple copies of some works are
specifically allowed, even if not "transformative." The
Supreme Court underscored that conclusion by focusing on these
key words in the statute: "including multiple copies for
classroom use."
This factor
examines characteristics of the work being used. It does not
refer to attributes of the work that one creates by exercising
fair use. Many characteristics of a work can affect the
application of fair use. For example, several recent court
decisions have concluded that the unpublished "nature" of
historical correspondence can weigh against fair use. The
courts reasoned that copyright owners should have the right to
determine the circumstances of "first publication." The
authorities are split, however, on whether a published work
that is currently out of print should receive special
treatment. Courts more readily favor the fair use of
nonfiction rather than fiction. Commercial audiovisual works
generally receive less fair use than do printed works. A
consumable workbook will most certainly be subject to less
fair use than a printed social science text.
Amount is
both quantitatively and qualitatively measured. No exact
measures of allowable quantity exist in the law. Quantity must
be evaluated relative to the length of the entire original and
the amount needed to serve a proper objective. One court has
ruled that a journal article alone is an entire work; any
copying of an entire work usually weighs heavily against fair
use. Pictures generate serious controversies, because a user
nearly always wants the full image or the full "amount."
Motion pictures are also problematic because even short clips
may borrow the most extraordinary or creative elements. One
may also reproduce only a small portion of any work but still
take "the heart of the work." The "substantiality" concept is
a qualitative measure that may weigh against fair use.
Effect on
the market is perhaps even more complicated than the other
three factors. Some courts have called it the most important
factor, although such rhetoric is often difficult to validate.
This factor fundamentally means that if you make a use for
which a purchase of an original theoretically should have
occurred-regardless of your personal willingness or ability to
pay for such purchase-then this factor may weigh against fair
use. "Effect" is closely linked to "purpose." If your purpose
is research or scholarship, market effect may be difficult to
prove. If your purpose is commercial, then effect is presumed.
Occasional quotations or photocopies may have no adverse
market effects, but reproductions of software and videotapes
can make direct inroads on the potential markets for those
works.
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