Fair Use Week 2018: Creation and Communication in the Academy

Today, February 26, marks the beginning of Fair Use Week 2018; a time for us to celebrate and talk about one of the most useful, flexible, and maddening doctrines in copyright law. This week, we’ll look at four fair use cases and learn about their effect on and meaning for the work that we do.

Fair use is not unique internationally, but it is most well-developed in the U.S., in part because of our need to harmonize the rights of copyright and the rights of the First Amendment. In many ways, fair use is a creature of the law of equity—the law of common sense and fairness. At the same time, its flexibility can sometimes make it opaque to the person who first encounters it. Nevertheless, most of us in the academy, whether we know it or not, use fair use all the time as we write, teach, research, and create.

During a work’s long term of copyright, the rights holder has broad control over whether and how the work can be used. Exceptions built into copyright law allow for a loosening of that control for reasons that society has deemed necessary or desirable. Many statutory copyright exceptions are detailed and specific, allowing certain uses by certain people for certain purposes. In contrast, fair use takes a less prescriptive approach

Fair use in U.S. law began as part of the common law in the 19th century, a judicial construct to fill in when specific exceptions to copyright law did not apply. It was finally codified in the 1976 revision of the Copyright Act as 17 USC Ş107. The section’s preamble sets the stage with some examples of when it is appropriate to invoke the fair use exception: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Just participating in these types of activities is not enough; the following four factors must also be considered in a fair use determination:

(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.

The section ends by noting that an unpublished work can be subject to a fair use analysis, using the same four factors.

Anyone who has added a quotation to a term paper or added a funny cartoon to a PowerPoint slide has employed the fair use exception. Reporters use fair use when they include another’s video to a news story, and researchers often use fair use when they analyze a textual or visual work. Fair use assists activities protected by the First Amendment, such as parody and criticism. Fair use runs through all the ways we create and communicate with each other.

Join us tomorrow for our first case, Campbell v. Acuff-Rose, which is about parody and transformation. Are you involved in Fair Use Week programs? What are your questions about fair use? Follow us and comment on Twitter @UNCScholComm and @OpenAcess_UNC.