Tuesday, October 5, 2010

The Curiously Ambiguous Case of Fair Use

Image above courtesy of Creative Commons.org
Many of you have heard the term "fair use" when it comes to using films in course or distributing copies of an article in class but what exactly is "fair use" and where does it come from?  And how does fair use apply to academic libraries and university classrooms?

Today some of the librarians, faculty and others attended a webcast on fair use. It was entitled Libraries and Copyright: Fair Use and eReserves. It was conducted by Kevin Smith and Steve McDonald, both attorneys who specialize in copyright and work in academia. Kevin Smith is Scholarly Communications Officer at Duke University and writes extensively on copyright issues in regards to universities and academic libraries. He has commented on the recent court case involving Georgia State Universities and their eReserve policy. We hope to put eReserves in place at Union in the future. In any case today's presentation had to do with The Fair Use clause in American copyright law. I will try to be brief and unpack this in a way that is not mind numbing but it will be impossible to clear up all of the ambiguity with fair use. That is because fair use is a dynamic, not "frozen", "safety valve" of copyright restrictions. 

In order to get to the need for the fair use provisions first Smith and McDonald needed to define copyright law. At the risk of oversimplifying copyright refers to intellectual or intangible property and prevents anyone besides the rights holder from copying, modifying, publicly distributing, performing or displaying the work. Well if you think about that present a huge problem for scholars and librarians. We copy, distribute and display works every day. Now there are exceptions for classroom use and exceptions for express written permissions like the license agreements that we sign with electronic journal databases. Yet still there are instances where Copyright law is just too restrictive. 

In 1976 Congress ruled that fair use could be judged on a case by case basis. The idea was to uphold fair use and not to freeze it. Because information and the technology by which we acquire information is always chaning fair use must essentially be taken case by case. That is what makes fair use so ambiguous because it is meant to uphold the intent of the law and not the letter of the law where the letter of the law (Copyright) is just too restrictive. Below are listed the provisions or things that will be taken into consideration in a potential fair use dispute:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes        
2)The nature of the copyrighted work
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work.

Essentially these four provisions of fair use mean that attorneys will have a lot of work. So much is open to interpretation.  For those working in the academy this, in many ways provides more freedom because most of us are not reproducing, modifying or redistributing works to make a profit, nor are way doing so in a way that harms the profits of those involved. Considerations 1 and 4 both argue that purpose, in our case education, and economics will be taken into account. Also notice that provision 3 does not set a limit to the amount of a work that can be used. There is a myth that only 10% of a work can be reused but that is not true. It really is a case by case scenario and in academia we should use the appropriate amount to make a point or argument from another work.

In conclusion Kevin Smith argues that fair use should be a "last resort" because copyright law offers many other options such such as creative commons, public domain, classroom use, and works that are in the public domain. Still fair use can help us in academe to understand that we can take risks in an ever changing world of information.

Smith, Kevin and McDonald, Steve (2010) Applying the Fair Use Doctrine, (PowerPoint Slides) Academic Impressions

U.S. Copyright Office. (2009) Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. Washington, DC: U.S. retrieved from http://www.copyright.gov/title17/


Jonathan Miller said...

TR -- Great post on an important topic. Michael Madison at the Pitt law school, from whom I took copyright law, would add a few more layers before you get to fair use. In the form of questions:

1. Is the work copyrightable? i.e. is it an original work of authorship fixed in a tangible medium of expression?
2. If so, is it or was it, copyrighted? Easy, if it was 'fixed' after January 1, 1978, but before that works had to go through various formalities before being copyrighted.
3. Is it still under copyright, or has it entered the public domain?
4. Is the use you envisage for the work one of the exclusive rights of the copyright holder, or not?
5. If so, is the use use you envisage covered by one of the exceptions you discuss in your post.
6. Only one of which, is, as you say, fair use.

TR said...

Yes Kevin Smith did say that "fair use" was a "last resort rather than a first defense"