UNDERSTANDING AND USING FAIR USE

Wesley D. Blakeslee

The Johns Hopkins University

Baltimore, Maryland

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Copyright 2008, Wesley D. Blakeslee. Permission granted for personal use to attendees of the Copyright in Academia: Challenges and Opportunities symposium, University of Kansas, March 7, 2008. Materials may not be further duplicated nor incorporated in other works without permission.

Colleges and Universities are Confused and Conflicted About

Fair Use.

• We are producers as well as users of copyrighted materials

• Many have a university press

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Examples

• Google digitization project with U. Michigan Library

• Princeton Univ. Press v. Mich. Document Services

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THIS IS AN ADVOCACYPRESENTATION

• We should not apologize for Fair Use• We need to understand it and embrace it.• We will discuss today what I THINK we should be

doing.

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WARRANTY DISCLAIMER

I am not your lawyer. In individual situations you must rely on your own legal counsel.

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What is Fair Use Not?

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• Fair Use is not a license to steal.

• Fair Use is not a government scheme to redistribute wealth and property.

What is Fair Use Not?

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• Fair Use is not a defense to copyright infringement.

• Because: Fair Use IS NOT AN INFRINGEMENT OF COPYRIGHT

What is Fair Use?

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Fair Use is a concept that allows limited use of copyrighted material without the permission of the copyright owner.

The Origin of Fair Use springs from the origin of copyright

itself.

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The United States Constitution creates the power in Congress to grant copyrights and patents, in Article I Section 8.

It creates that power, NOT to make authors or inventors rich, but "to promote the progress of science and useful Arts"

Fair Use is the Justification for Copyright

• Copyright is a special privilege granted by the Federal Government.

• It is not the business of the government to grant special privileges.

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Fair Use

is the LAW!

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Fair Use is the LAW!

• Originally recognized as part of case driven common law:• Fair Use as a cohesive set of principles

developed in English common law beginning in 1740

• First U.S. Case to discuss was Gray v. Russell, 10 F. Cas. 1035 (D. Mass. 1839)

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WHY DO WE CARE ABOUT THE ORIGIN

• Because Fair Use is a balancing test, not a black and white list of rules.

• To understand how the elements apply, it is necessary to understand the origin and purpose of Fair Use and the factors to be considered.

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EARLY CASES

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• Focused on the transformative nature of the use – i.e. in what way did the purpose of the new work differ from the copied work.

• Example of Fair Use would be copying a portion of a literary work in an article reviewing and critiquing the work.

• Example of not Fair Use was outlines made of lessons from a textbook for students in class using the textbook and studying the subject matter.

Folsom v. Marsh9 F. Cas. 342 (D. Mass. 1841)

• In deciding questions of this sort, much must depend upon the nature of the new work, the nature of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work, and the degree in which the original authors may be injured thereby.

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4 Pronged Test

• Originally 1 and 4 were most important, with a slight edge to 1, the more "transformative" the better.

• Today, as Tracy pointed out in the conference announcement, we have gone from balanced policy to a legal property regime, so #4 seems to be the most important today.

• The Golden Rule: He who has the gold makes the rules.

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Transformative Nature Trumps Commercial Use

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• Time v. Geis, 293 F. Supp. 130 (S.D. N.Y. 1968) – Use of Zapruder film frames to illustrate theory of Kennedy assassination in commercial book.

 • Campbell v. Acuff – Rose Music, Inc., 510 U.S. 569; 114 S.

Ct. 1164; 127 L. Ed. 2d 500 (1994) – Commercial song parody Fair Use.

• (Both cases permission sought and denied)

Williams & Wilkins Company v. United States.

203 Ct. Cl. 74; 487 F.2d 1345 (1973) Aff'd, 420 U.S. 376 (1975)

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NIH and its National Library of Medicine, which had a practice of copying articles from scientific journals and distributing copies of the articles to government agencies and its outside patrons, which were primarily commercial drug companies. NO INFRINGEMENT

Actually more of a research and library exception than a non-profit educational use exception

Williams and Wilkins

• Decided Under 1909 act (1973 below, 1975 Supreme Court).

• Fair Use not a part of the 1909 statute, relied on common law.

• Evenly divided Supreme Court, so no S.Ct. analysis or opinion.

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Williams Recognizes Fair Use

• Precisely because a determination that a use is "fair," or "unfair," depends on an evaluation of the complex of individual and varying factors bearing upon the particular use, there has been no exact or detailed definition of the doctrine.

• The courts, congressional committees, and scholars have had to be content with a general listing of the main considerations -- together with the example of specific instances ruled "fair" or "unfair."

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Williams Four Pronged Test

(a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used

in relation to the copyrighted work as a whole, and(d) the effect of the use on a copyright owner's

potential market for and value of his work.

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Williams Purpose of the Use

• We start by emphasizing that:

• NIH and NLM are non-profit institutions,

• devoted solely to the advancement and dissemination of medical knowledge, and

• are not attempting to profit or gain financially by the photocopying.

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Williams Nature of the Copied Work

• The copied articles are scientific studies useful to the requesters in their work.

• This is important because it is settled that, in general, the law gives copying for scientific purposes a wide scope.

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Williams Amount and Substantiality

• Both libraries have declared and enforced reasonably strict limitations, including

• restricting copying on an individual request to a single copy of a single article of a journal issue, and

• restricting to articles of less than 50 pages.

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Williams Economic Loss• Focused on subscriptions

• The record made in this case does not sustain that assumption that subscriptions were reduced. The unrefuted evidence shows that annual subscriptions to the four medical journals involved increased substantially as did annual subscription sales.

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Williams Rejects Circular Reasoning

• It is wrong to measure the detriment to plaintiff by loss of presumed royalty income -- a standard which necessarily assumes that plaintiff had a right to issue licenses. That would be true, of course, only if it were first decided that the defendant's practices did not constitute "Fair Use." In determining whether the company has been sufficiently hurt to cause these practices to become "unfair," one cannot assume at the start the merit of the plaintiff's position, i.e., that plaintiff had the right to license. That conclusion results only if it is first determined that the photocopying is "unfair."

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The 1976 Copyright Law Revision

• Copyright statute had not had a major revision since 1909

• Ongoing for many years

• New technologies, new issues

• Content industry was pressing for law changes to greater protect their products.

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Ad Hoc Committee on Copyright Law Revision

• Committee of 25 educational associations

• Involved in the process of the 1976 revision.

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Adoption of the 1976 Act

• First major re-write of 1909 copyright law.

• Fair Use codified for the first time.

• Congress specifically stated that its intention was not to change the law of Fair Use or to broaden it in any way.

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USC Title 17Section 107. Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of Section 106 and 106A the Fair Use of a copyrighted work, . . . for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

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1976 Act -Expanded Fair Use?

• Educational Fair Use, as such, had not been previously recognized, and most certainly “multiple copies for classroom use” had never been a class of uses found to be fair.

• Many writers believe that the 1976 act did in fact change and broaden the scope of Fair Use.

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Clear Language 1976 Act

The statutory language seems quite straight forward. It should be clear that making multiple copies of articles, such as scientific journal articles, for classroom use is in fact Fair Use so long as the four factors are considered. However, despite the Williams & Wilkins case, and the passage of the Copyright Act of 1976, we have not taken full advantage of educational Fair Use.

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The Erosion of the Right of Educational Institutions to use

Copyrighted Works for Nonprofit Educational Purposes

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Academics, Like Parents, Desire Peace And Quiet

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The Classroom Guidelines.

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AD HOC COMMITTEE ON COPYRIGHT LAW REVISION:Coalition of 25 educational associations.

Representatives of the content industry

The Classroom Guidelines.

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"safe harbor"

Intended to be a minimum statement of Fair Use.

Purpose Of The Classroom Guidelines

• Intended to apply to K through 12. - Totally inadequate for the college level.

• Rules of thumb, so narrow so that if followed, use would always be Fair Use.

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These Classroom Guidelines were quoted in the congressional record as part of the legislative

history of the 1976 Act.

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The Classroom Guidelines have had more influence on the content of

university copyright policies than any case law, analysis, or statute.

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Things In The Classroom Guidelines That Are Not In The

Law Of Fair Use

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Spontaneity

• The copying is at the instance and inspiration of the individual teacher.

• The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

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Spontaneity

• Idea was to preserve the “teachable moment” to in essence allow use when immediate need and no opportunity to obtain permission.

• A good idea in concept, but not when it becomes a requirement of Fair Use.

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Spontaneity• Getting or not getting permission has no

bearing on Fair Use.

• If spontaneity is the law, there can never be Fair Use if there is time for permission; an instructor who prepares in advance loses Fair Use.

• An exigent need is a factor in favor of a finding of Fair Use – i.e. the inability to get permission within the time needed.

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Cumulative Effect

• The copying is for only one course in the school in which the copies are made.– So, do we need a centralized list of what we

want to use, and then draw straws to see who gets to make the use?

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Guidelines Prohibitions

Copying shall not:

• Substitute for the purchase of books, publishers’ reprints or periodicals –• Aren't all copy fees essentially reprint

fees?45

Guidelines Prohibitions

Copying shall not:

• Be directed by high authority• If God inspires me I have to pay?

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Guidelines Prohibitions

• Copying shall not: • Be repeated with respect to the

same item by the same teacher from term to term

• Fair Use ceases to be Fair Use?• Spontaneity in disguise?

• Led to the permission fees fallacy.

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The Classroom Guidelines Are To Fair Use As Dick Cheney Is

To Barack Obama

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No Safe Harbor

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The content industry has refused to acknowledge the Classroom Guidelines as a "safe harbor,” and has not agreed to forego suits when the Classroom Guidelines are followed, and in fact has reserved openly its right to bring an action even for copying that is within the Classroom Guidelines

The Problem With Guidelines

• Fair Use complicated balancing test, does not lend itself easily to shorthand guidelines

• CONFU, CONTU – two high level gatherings of experts to set guidelines, ultimately could no agree on any.

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The Problem with Guidelines

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• Guidelines are often confused by the participants and the court.

• Guidelines become the outer limit not the minimum.

The NYU Case

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Major publishers brought an action against New York University and nine of its professors and a commercial copy center, alleging copyright violations in creating course packs.

The case was settled when New York University adopted the Classroom Guidelines as the standard. That settlement required NYU to adopt the Classroom Guidelines, but without the language in the original preamble to the Classroom Guidelines that acknowledged that they are minimum standards and that photocopying outside of the Classroom Guidelines may be permitted.

Princeton U. Press v. Mich. Doc. Svcs

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Although the Classroom Guidelines purport to >state the minimum and not the maximum standards of educational Fair Use’, they do evoke a general idea, at least of the type of educational copying Congress had in mind.

American Geo. v. Texaco

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Referring to one of the uses made by Texaco Scientists - making a copy to take immediately to the lab - the Court said:“This is the sort of "spontaneous" copying that is part of the test for permissible nonprofit classroom copying.”, thus making the Guidelines and spontaneity not a minimum, but the “test” by which classroom copying is to be measured.

Permission Fees-The Fallacy of Circular Reasoning.

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Originally the issue of impact on value of the work copied focused on the original work itself - - i.e. how would the value of the original thing -book, journal subscription, etc. - be affected

Spontaneity, which focuses on a time inability to obtain permission, and its cousin “cumulative effect” brings permission fees into Fair Use considerations.

Williams & Wilkins recognized that to look toward permission fees was circular reasoning.

American Geo. v. Texaco

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Distinguished Williams and Wilkins view of permission fees as circular reasoning: Whatever the situation may have been previously, before the development of a market for institutional users to obtain licenses to photocopy articles, [citing Williams & Wilkins], it is now appropriate to consider the loss of licensing revenues in evaluating >the effect of the use upon the potential market for or value of’ journal articles.

Amount and Substantiality

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Am. Geo. also opined that individual articles are to be considered, so that copying an entire article is using 100%, weighing against Fair Use, rather than considering the article as a small part of the content of the entire journal, which is the thing that is sold.

Where We Are Today

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Michigan Document Services and Kinko’s teach that course packs are not permitted. They were NEVER permitted.

If you buy American Geophysical, then • an individual article from a journal can be considered as

copying 100% of the copyrighted work. • But that is a commercial copying case. The Senate report

on the 1976 act specifically recognized that Fair Use in the classroom would permit copying an entire article.

• The ability to obtain permission, and the availability of an easy to use permission process will weigh against Fair Use.

BUT

Williams and Wilkins is good law, not overruled by Mich. Doc. nor Am. Geo, and in fact, Williams is technically affirmed by the Supreme Court, arguably not able to be overturned by any circuit.

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REMEMBER

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No case of a teacher handing out multiple copies of articles for classroom use has ever been decided by the Supreme Court since the passage of the 1976 Act.

The Supremes

• Supreme Court Cases generally recognize Fair Use, and found Fair Use in the important cases before them.

• Sony, and Acuff – Rose particularly strong.• Harper and Row – found no Fair Use, but work

was unpublished, and the doctrine of Fair Use was recognized.

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How can we help ourselves

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• Don’t even mention the Classroom Guidelines.

• Eliminate spontaneity from your thinking (except as an EXTENSION of Fair Use).

• Worry less about the “cumulative effect” and recognize

that Fair Use is Fair Use, even the second time around.

• Limit journal articles to a reasonable amount such as no more than five from any journal year per course.

• Be strict on the four factors especially as to materials designed for the classroom.

Creative Lawyering

• Transformative nature of use still trumps, even if commercial

• Perfect 10 v. Amazon.com, Inc., 487F.3d 701 (9th Cir. 2007)– Court found producing thumbnails of

copyrighted images transformative because used as link to originals

– Isn’t classroom use of a journal article transformative?

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Creative Lawyering

• Most journal subscriptions are now electronic as well as print.• Electronic subscriptions should be negotiated to

provide students right to make a copy

• In such circumstance, providing a classroom copy would be within the license.

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