Week 3 (4/1-4/5): Fair Use
Week 3 (April 1 - April 5) Limitations to Copyright: Overview. Fair Use.
Congratulations on submitting Case Scenario #1! Now that you've learned about the fundamentals of copyright and the public domain, and the rights of owners, you will begin to look at the limitations on those rights.
Goals: This week you will learn about limitations to an author's exclusive rights, in particular fair use, and how fair use applies to your uses of copyrighted materials as an educator, as well as student use.
Copyright, like all forms of property rights, includes significant limitations. In First Amendment law, for example, you famously "can't shout fire in a crowded building". In property law, property that has been abandoned can be reclaimed by others under "adverse possession" or "abandonment" claims.
In copyright law, limitations are expressed in doctrines such as the "first sale" rights (sometimes called the "principle of exhaustion"), "fair use", and numerous other specific rights. This week we will cover one of the most important of those rights, fair use, and next week we will examine first sale and other specific limitations.
Background on fair use:
The doctrine of fair use was developed by courts as a general "gut instinct" on what was "fair" and "unfair" in copyright law. In 1976, it was codified as 17 USC Section 107 of the US Copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Note that five of these six paradigmatic examples of fair use are directly applicable to educators.
Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. Each of these factors has to be considered in relation to the others -- and although factor 1 is usually considered to be the most important, with factor 2 the second most, all the factors are weighed together.
Factor #1: What is the purpose of the use? Courts look at two major questions here. First, are you using the work for commercial or non-profit purposes? Non-profit purposes tip the scale toward fair use; whereas commercial purposes tip the scale against fair use. For example, showing a documentary to students in your class would weigh in favor of use; while showing it to the general public and charging admission would weigh against use. The statute specifically compares "non-profit educational purposes", suggesting that these would provide the greatest contrast to commercial uses.
Second, are you making a "transformative" use, by adding a new message or meaning? For instance, a parody, collage, scholarly analysis, or textual index all "transform" the original work, thus weighing in favor of "fair use", while copying it exactly and using it in the same way do not transform it, thus weighing against fair use.
Factor #2: What is the nature of the work?
Is the work fact-based or fictional? Because ideas cannot be copyrighted, and original expression can, uses of fact-based works are more likely to be fair use than uses of creative or purely original expression. For example, reproducing or distributing a newspaper article would tilt the analysis more towards fair use, while doing the same thing with a novel would tilt the analysis away from fair use.
This factor also considers whether the copyright holder has ever published the work -- if she has never published it or released it to the public, then use of it is less likely to be fair use than if she did previously make it available to the public. Also considered under this factor is whether the work is currently in print, or out of print and not commercially available at a reasonable price. Reproducing and distributing a work that one can easily obtain is less likely to be a fair use than reproducing and distributing an out-of-print and hard-to-find work.
Factor #3: How much of the work will be used?
Generally, small portions are more likely to be fair use. For example, showing 10 minutes of a two-hour movie would weigh more heavily in favor of use than showing the entire movie. However, how much is "reasonable" is determined by the purpose (factor 1) -- if using the whole work is "reasonable," then it can be acceptable under fair use; while even a small fraction, if it is more than you need for your purpose, might not be. Some kinds of works may be more difficult to use in part -- such as images or other single, indivisible works.
Factor #4: What is the effect upon the market or potential market?
Simply put, this factor asks, "If the use were widespread, would it prevent the copyright holder from legitimately making money from the work?" For example, copying and distributing a book that is also available for sale would weigh against fair use, since each distribution of a copy could substitute for a sale. But quoting or taking a small excerpt to teach or write a review would be less likely to substitute for a sale.
Deciding whether a use is a fair use or an infringement can sometimes be tricky. There is no specific number of words, lines, or notes that may safely be taken without permission. Since the question of whether a particular use is considered fair use, some communities have developed "Best Practices" for using copyrighted materials, some of which are provided in the reading list below. These are not hard-and-fast rules, but they can be useful in understanding the contours of the doctrine.
Key words: defenses to copyright infringement, fair use
- 17 U.S.C. 107 (text of the law)
- "Copyright and Fair Use Overview", Chapter 9, Stanford University Libraries
- Reproductions of Copyrighted Works by Educators and Librarians (Circular 21), by the US Copyright office (note that this resource also talks about section 108 which will be the subject of next week's readings)
- Code of Best Practices in Fair Use for Academic and Research Libraries, from the Association for Research Libraries (2012)
Optional Readings and Resources:
- "An Introduction to Fair Use and Other Free Expression Rights", Fair Use Network
- Copyright for Librarians, Module 4 "Rights, Exceptions, and Limitations", Berkman Center
- Internet Law Treatise on Fair Use, Electronic Frontier Foundation (explaining some of the case law interpreting the statute)
- "A Fair(y) Use Talk", Stanford Center for Internet and Society
- Browse materials from the Media Education Lab at Templeton University : http://mediaeducationlab.com/topic/Copyright%2Band%2BFair%2BUse
- Browse through the various "Codes of Best Practice" available at the Center for Social Media.
These are questions provided for your understanding, to be discussed with your group and with the course facilitators in office hours. Answers to these questions do not have to be submitted and will not be part of your grade.
Scenario 1: An English teacher prints a classroom handout, and includes one paragraph from a book to show pithy writing. Is this fair use? Which factors weigh in favor of fair use, and which against? What facts lead you to your conclusion?
Scenario 2: An English teacher makes photocopies of one chapter of an out-of-print textbook on English Composition for each of her students. She keeps a master photocopy on file for future use. Is this a fair use? Which factors weigh in favor of fair use, and which against? What facts lead you to your conclusion? Is the outcome different or the same as Scenario 1? Why or why not?
Scenario 3: A textbook publishing company finds an excellent website by an English teacher made publicly available on the Internet. The publisher copies the website word-for-word in a new edition of an English composition textbook and gives the teacher credit. Is this a fair use? Which factors weigh in favor of fair use, and which against? Is the outcome the same or different from Scenario 1 and Scenario 2? Why or why not in each case?