The exclusive rights of copyright are exclusive but not absolute. Instead, there are numerous limitations, exceptions, and defenses to these rights, including the seminal concept of fair use, the practice by which parts of a copyright-protected work may be made without the owner’s permission. [See Fishman, Stephen. The Copyright Handbook. (Berkeley: Nolo, 2008), p. 292.] Although the Patent and Copyright Clause of the US Constitution granted copyright protection to the creator of a work “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” Congress decided that the promotion of knowledge could be furthered by allowing copyrightable material to be used freely and without permission of the copyright owner in certain circumstances and for certain purposes, and in the education arena, fair use is one of two major ways (the other being the TEACH Act, in distance education) by which copyright-protected works may be so used.
Fair use is codified and has its statutory basis in §107 of the Copyright Act of 1976 [17 U.S.C. §107]. The Preface to §107 lists illustrative activities that may be considered fair use:
– Educational Activities [teaching, scholarship, research]
– Literary and Social Criticism
– Comment
– News reporting
– Parody
In addition, §107 of the Copyright Act lists four factors to help decide whether or not a use is a fair use, as follows:
Factor 1: Purpose/Character of the use
Courts favor uses that are transformative, i.e., uses that create something new from the underlying work. Furthermore, if the person using copyrighted material derives an economic advantage or makes a profit from the use, then the use is less likely to be considered a fair use. In contrast, if a use is for a nonprofit educational cause, such as research or scholarship, then the use is more likely to be a fair use.
Factor 2: Nature of the copyrighted work
If the underlying work is more creative, then it is less likely that a use based on the underlying work would be considered a fair use.
Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole
For the purposes of determining fair use, using 1 page from a 2-page article is not the same as using 1 page from a 500-page book: in contrast, using 1 page from a 500-page book is more likely to be considered fair use than using 1 page from a 2-page article.
Factor 4: Effect of the use upon the potential market for or value of the copyrighted work
This factor is probably the most important of the four factors. What economic effect will the use have upon the copyright owner? Will it cause the copyright owner to lose money? If so, then the use is probably not a fair use.
Unfortunately, fair use is hard to define and complicated: deciding whether or not a use is fair is a grey area, requiring a balancing of the four factors and a weighing of competing policies, since there are no precise or straightforward definitions or tests to determine fair use. As a result, fair use has become a legal minefield: publishers want to keep the fair use exception as narrow as possible, for reasons of economic self-interest, while educators (including librarians) in contrast want to broaden and expand the scope of fair use. This battle has been fought in the courts for many years and shows no signs of being resolved soon. To illustrate, the United States Copyright Office made available on its website the Fair Use Index which provides a searchable database of federal court decisions in the United States on fair use. (Kevin Smith, Dean of Libraries at the University of Kansas and formerly of Duke University, estimated that over 171 cases about fair use have been decided in the US since the doctrine was first developed in the 19th century). For instance, if I wanted to find out if there were any fair use cases of relevance to Alabama, I would check the box next to “Eleventh Circuit” (since the United States Court of Appeals for the Eleventh Circuit includes Alabama, Florida, and Georgia), and I would find there have been six court cases involving fair use, including the famous case of Cambridge Univ. Press v. Patton in which Cambridge University Press, Oxford University Press, and SAGE Publishing sued Georgia State University for copyright infringement “by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees,” to which Georgia State University claimed the fair use defense. The United States District Court for the Northern District of Georgia ruled in favor of Georgia State University for the most part, but the decision of the lower court was reversed and remanded by the United State Court of Appeals for the Eleventh Circuit. This landmark case was filed in 2008, the District Court made its ruling in 2012, and a second ruling was issued in 2016, generally in favor of Georgia State University and its fair use defense.
A NOTE OF CAUTION: Remember, the use of copyright protected material without permission might result in a lawsuit for copyright infringement, unless the use falls within an exception, such as Fair Use. So, beware and be careful! Therefore, to avoid a lawsuit (or even an injunctive order), either:
– obtain permission from the copyright owner to use the material in question, or
– obtain a license to use the material, or
– decide whether or not your use falls within an exception [such as FAIR USE], or
– don’t use the copyright protected material.
Conclusion
Copyright is complex, complicated, and often confrontational. Because of new technologies, copyright law is always changing and adapting. Keep abreast of new laws, rules, and regulations by visiting the website of the U.S. Copyright Office, at http://www.copyright.gov.
