Fair Use Week (Sec. 107)

This is the latest in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

Happy Fair Use Week, everyone!

Every year around this time, Civil Society copyright advocates set aside a week to celebrate one of the most important parts of our copyright law. The brainchild of the incomparable Kyle K. Courtney, Fair Use Week is now in its thirteenth year. What started out as a celebration within the Harvard University community has now grown into an international celebration. So as a part of the Fair Use week celebrations, we are extending our series on the 50th Anniversary of the Copyright Act of 1976 to include a week of posts on Section 107 of Title 17, our fair use statute. 

We love fair use. We use it every day, and you probably do, too. For my part, as a US-American, I’m also kind of proud of it. The fair use doctrine as we know it in the United States is one of the country’s better contributions to intellectual property laws, and its codification was the product of a great deal of thoughtfulness and care by both Congress and the Copyright Office. The doctrine has received some criticism, in international circles, for its being too open ended to be compliant with the Berne Convention, but that criticism has been largely—and justly—ignored by Congress. 

The United States has had some form of fair use since at least 1841. That was the year then-Judge (later Justice) Joseph Story penned his opinion in Folsom v. Marsh. Despite that storied (sorry) origin, Folsom was not new law even then. Rather, as Emory professor Matthew Sag, has written, Folsom was the product of prior work of courts on both sides of the Atlantic since the United Kingdom enacted its very first modern Copyright Act, the Statute of Anne, in 1710. But though its history is as old as copyright itself, it had never been codified in a statute, in the United States, at least, until the 1976 Act. 

In fact, the United States had not codified any exceptions to copyright prior to the 1976 Act. As Congress studied and debated the 1976 revision, there was some question as to whether codification of exceptions was even needed. U.S. copyright law was still very much a creature of common law (i.e., law derived by courts from judicial precedent). And the courts had found plenty of room for exceptions, including some—such as those for libraries and for teaching—which in the 1976 Act would be codified separately. Under the 1909 Act, each was a species of fair use.

The Copyright Office’s 1958 study of fair use, written by Alan Latman, provides very interesting reading on the thinking that went into the decision to codify fair use in the new Copyright Act. The study looked at the legislative history of the 1909 Act, proposals to revise copyright since the 1909 Act, and case law since Folsom. It noted that most countries, at that point had included statutory exceptions to copyright, and in particular it looked at the United Kingdom’s recent Copyright Act of 1956. 

The published comments in reply to the study are particularly illuminating. Each of the commenters, to a one, first praised the study and then recommended Congress do nothing at all. The consensus was the courts were doing fine without a statute. As an equitable rule of reason, the doctrine allowed courts to adapt the law to changing technology, and some worried that codification would freeze the law, preventing future growth. Many argued that if Congress must codify the law, they should simply enshrine the common law practice with as little specificity as possible. One of my favourite lines came from Professor Ralph S. Brown of Yale University:

“Just as acceptance of the benefits of statutory copyright is conditioned on ultimate dedication to the public, so also permission for fair use should be implied in the statutory grant, If there is any doubt that our public policy requires the acquiescence of the copyright owner in copying that is insubstantial and noncompetitive, then perhaps these words should be included to make it quite clear that such copying is not an infringement.”

I especially like this passage because it is so emphatic about the nature of the doctrine. Fair uses are not simply excused infringements; they are never infringements in the first place. They are implied in the grant of copyright. Fair use is integral to the fabric of the law—you can no more separate fair use from copyright than you can separate exclusive rights.

I mentioned earlier that fair use is sometimes criticized by the outside world. It is also sometimes criticized within the United States as being difficult to interpret. My wonderful copyright law professor liked to say that there were only nine people in the world who knew for certain whether something was a fair use. The Latman study offers the following from Saul Cohen: 

“There is one proposition about fair use about which there is widespread agreement: it is not easy to decide what is and what is not a fair use.”

Despite this, the commenters on the Latman study generally urged Congress not to try to enumerate the types of fair uses. Some cited reasons such as the danger of a list inadvertently restricting the right or making it obsolete, or undesirable results in other countries’ attempts to do so. But perhaps because of the challenge in making fair use determinations, the Copyright Office, in its final report, recommended that Congress at least provide some guidance as to the scope of the right. For its part, the Office gave a nicely succinct description:

“Broadly speaking, it means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for [their works].”

In the end, of course, Congress couldn’t resist the urge to provide examples of fair use. The fair use statute names “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” as being (but without limitation) the sorts of uses that they had in mind. The statute also provides the now canonical four factors:

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.

In the coming days, we’ll post reflections on each of the four statutory factors, each written by a different author here at Authors Alliance. Look for more tomorrow!