COPYRIGHT/FAIR USE OVERVIEW

 

  1. Whether a use is fair "in any particular case" depends on the following factors (Section 107, 1976 Copyright Act):

    2. 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 "potential market for or value of" the copyrighted work.

  2. Section 107 lacks detailed analysis
additional interpretative sources a necessity

comments from The Nature of Copyright: A Law of Users' Rights, by L. Ray Patterson and Stanley W. Lindberg (University of Georgia Press, 1991):
  1. purposes noted in Section 107:
    1. criticism;
    2. comment;
    3. news reporting;
    4. teaching (including multiple copies for classroom use);
    5. scholarship; and
    6. research.
  1. the "nature" factor is the vaguest of the four factors.
    1. it lacks a legislative history or case law.
    2. It is a corollary to the first factor.
  1. generally, copying of an entire work isn't "fair use."
    1. qualitative is more important than quantitative.
    2. relevant elements include
--the amount and substantality of the portion of the copyrighted work used in relation to the alleged infringing work, and

--the independent labor avoided and benefit achieved from the copyright owner's research, labor, and skill.
  1. The "economic" factor like the first factor, can be controlling.
    1. slight detrimental economic effect permissable, as long as the other three factors favor fair use.
    2. Some cases (e.g., Williams & Williams Co. v. U.S., 1975) suggest that actual, rather than probably, effects the standard for judging the impact of the copying upon the potential market.
Registrar's 1961 Report notes some activities courts might regard as fair use:
  1. quotation of excerpts in a review or criticism for purposes of illustration or comment;
  2. quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations;
  3. use in a parody of some of the content of the work parodied;
  4. summary of an address or articles, with brief quotations, in a news report;
  5. reproduction by a library of a portion of a work to replace part of a damaged copy;
  6. reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  7. reproduction of a work in legislative or judicial proceedings or reports; and
  8. incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
  1. Vagueness of "fair use" prompted interested groups to meet and attempt to set guidelines concerning classroom copying, educational uses of music, and classroom use of audiovisual works.
the guidelines constitute "the minimum and not the maximum standards of educational fair use" (1976 House Report).
  1. the parties recognized the conditions may change in the futre, possibly rendering the guidelines either too broad or too narrow.
  2. furthermore, the parties made clear that where the general concept of "fair use" allowed greater leeway in copying than did the guidelines, then "fair use" would govern.
  3. the report indicated that the guidelines would give teachers a greater degree of certainty and protection.
  4. Strong dissent against the guidelines, as unduly restrictive, was registered by the Association of American Law Schools and the American Association of University Professors.
agreement was reached only in two areas:
  1. Classroom Copying of Books and Periodicals
    1. prepared by representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, the Authors League of America, and the Association of American Publishers.
    2. text:
Single Copies

A teacher may make a single copy, subject to "prohibitions," for research or teaching

purposes, of
    1. a chapter from a book;
    2. an article from a periodical or newspaper;
    3. a short, short essay or short poem, whether or not from a collective work;
    4. a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
Multiple Copies

Teacher may make multiple copies (i.e., one copy per pupil) for classroom use if the

copying meets certain tests for brevity,* spontaneity,** and cumulative effect.** Each

copy must also include a notice of copyright.

Prohibitions

Prohibitions applicable to both single and multiple copying are:
      1. the copies may not be used for anthologies, compilations, or collective works;
      2. "consumable" materials, such as workbooks, tests, and anwer sheets, may not

        3. be copied;

      3. copying may not be used to substitute for purchasing, be "directed by higher

        4. authority," or be repeated "with respect to the same item by the same teacher

        from term to term";

      4. the student may not be charge more than the actual costs of photocopying.
___________________________________________________________________

*"Brevity" is defined:
      1. poetry
      1. complete poem if less than 250 words and if printed on not more than two pages.
      2. excerpt of not more than 250 words.
      1. prose
      1. complete article, story, or essay of less than 2,500 words.
      2. excerpt of not more than 1,000 words or 10 percent of work, which ever is less,
but in any event a minimum of 500 words.
      1. illustration: one chart, graph, diagram, drawing, cartoon or picture per book or per

        2. periodical issue.

      2. "special" works: excerpt of not more than two published pages and not more than
10 percent of words found in text. **"Spontaneity" is defined:
      1. the copying must be at the instance and inspiration of the individual teacher; and
      2. the inspiration and decision to use the work and the maximum teaching effectiveness
must be so close in time that it would be unreasonable to expect a timely reply to a

request for permission.

 ***"Cumulative effect" is defined:
      1. the copying is for only one course in the school;
      2. not more than one short poem, article, story, essay or two excerpts may be copied from the same collective work or periodical valume during one class term; and
      3. multiplecopying is limited to no more than nine instances for one course during one class term.
Points 2 and 3 don't apply to current news periodicals and newspapers and current news sections of other periodicals. (1976 House Report)
  1. Educational Uses of Music
    1. prepared by representatives of the Music Publishers' Association of the United States,

      2. the Music Teachers National Association, the Music Educational Ntional Conference, the

      National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law

      Revision.

    2. Text
Permissable Uses
    1. emergency copying to replace purchased copies not available "for an imminent

      2. performance," provided purchased replacement copies are substituted "in due

      course";

    2. "for academic purposes" other than performance, single or multiple copies, not to

      3. exceed one copy per pupil, may be made of excerpts of no more than 10 percent

      of the whole work, provided that the excerpts do not constitute a "performable unit";

    3. purchased printed copies may be edited or simplified provided that the "fundamental

      4. character" of the work is not distorted or any lyrics altered or added;

    4. a single copy of recordings of performances by students may be made for evaluation

      5. or rehearsal purposes and may be retained by the educational institution or individual teacher; and

    5. a single copy of a sound recording of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher.
Prohibitions
    1. the copies may not be used as substitutes for anthologies, compilations, or collective

      2. works;

    2. "consumable" materials, such as workbooks, exercises, tests, and answer sheets, may not be copied;
    3. no ther copying for the purpose of performance, except as in the first permissable use;
    4. no other copying for the purpose of substituting for the purchase of music, except as in first and second permissable uses; and
    5. no copying without inclusion of the copyright notice that appears on the printed copy.
  1. To counteract the emphasis on classroom teaching activities, the legislative history deals with

    2. other uses under the doctrine of fair use.

    educational broadcasting not covered by sections 110, 112, or 118 could be considered fair use under the appropriate circumstances (factors include size and nature of the audience; whether performers, producers, directors, and others responsible for the broadcast were paid; etc.).

    making of works in special forms for the blind.

    the preservation of old films.

    the refutation of unfair criticism (i.e., copy criticizing work "to permit understandable comment on the statements made in the work." (1976 House Report)

    the publication of copyrighted works in congressional hearings and documents (factors include length of the work published, the number of copies authorized, and the relevance of the work "to a matter of legitimate legislative concern." (1976 House Report)

    a single reproduction of a work of a calligrapher.

  2. The right of fair use is not in any way affected by the specific statutory provisions permitting limited

    3. reproduction and distribution by libraries and archives.

  3. Arguably, no restraints were intended on home recording, from broadcasts or from tapes of records, of recorded performancs, "for private use and with no purpose of reproducing or otherwise capitalizing commercially on it." (H.R. Rep. No. 92-487, 1971)
  4. Some of the delicate compromises are beginning to fall apart (e.g., "Flareup at the Fair Use Frontier," Library Journal. 103 [1978] 601).

    5. there is a "cauldron of litigation brewing as to true application of fair use" (Selkirk. Fair Use and the Copyright Act of 1976, 49 N.Y.S.B.J. 558, 567. 1977).

    a private Copyright Clearance Center has been established (1977) to collect fees from photocopiers and divide the proceeds among copyright owners.

  5. Patterson and Lindberg offer an alternative perspective on copyright law:
Copyright law is not unique in that it contains legal fictions, but it is certainly unusual in the number of legal fictions and fallacies it has accumulated. The major reason for this may have been the long-unperceived absence of a unified theory of copyright, since an ambivalent theoretical foundation provides leeway for interpretation and therefore leads to a malleable concept subject to opportunistic modification. Whatever the cause, however, the topic of copyright fictions and fallacies has received little attention, which accounts for much of the confusion that characterizes copyright. While it may be possible to understand what copyright rules say, it is difficult to comprehend that they actually mean without an understanding of the significant role that legal fictions and resulting fallacies have played in the way copyright operates in America today.

 

The section 107 factors are neither immutable nor fixed: they are, by design, flexible and functional, their relevance being determined by the facts of the particular situation. This means that whether a particular use is a fair use is to a large extent a matter of judgment….Most, if not all, fair-use litigation thus far has been between competitors and, not surprisingly, has produced restrictive interpretations of fair use. While it does not follow that the same restrictive rules should apply to noncompetitors, there is a transference factor at work of which copyright owners have already made use--and which has remianed unrebutted because thus far they have not sued individuals making a noncompetitive use of their work.

 

Relevant to this last point--and particularly important for educators--is section 504(c)(2) of the 1976 Copyright Act. That provision requires courts to remit (that is, to refrain form enforcing, to pardon) statutory damages "in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was…an employee or agent of a nonprofit educational institution, library or archives acting within the scope of his or her employment who…infringed by reproducing the work in copies or phonorecords." This little-known protection for educational users no doubt helps to explain why noncompetitive fair use has received so little direct challenge from copyright owners thus far.

 

The blame for a corrupt fair-use doctrine, however, is not limited to the courts. Judges are capable of learning, and part of their problem is that previous commentary on copyright has not provided them with learning material as to the fair-use doctrine. For the most part, copyright scholars--who should provide courts with the deeper perspective their busy schedule otherwise denies them the opportunity to obtain--have merely reported what the courts do, not why they should have done it differently. Consequently, courts in fair-use cases too often view copyright as a plenary property right rather than a limited statutory right based on venerable policies, principles, and rules o its own. (pp. 212-213)