This guest post, by Katherine Klosek of ARL and Stephen Wolfson of the University of Pennsylvania, 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.
Have you ever heard this: If you use 10 seconds or less of a song in a YouTube video, it’s fair use. Or this: You can copy 10% of a book for a class, and that’s fair use. Rules of thumb like these are common, but are they actually true?
In truth, neither of these statements tracks either the text of the fair use statute or any of the Supreme Court’s opinions on fair use. Instead, they come from private rules and beliefs about what may or may not be acceptable under copyright’s fair use doctrine.
People may turn to heuristics to help make sense of confusing legal standards like fair use because they are quick and user friendly, and seemingly provide clarity about what uses are fair. They may offer some comfort in the face of numerous statutory sections, judicial decisions, and expert opinions on what constitutes fair use: Just follow these rules and you’ll be on the right side of copyright law. But relying on rules of thumb like these instead of your own analysis of why a use is fair can lead users astray, possibly toward infringement instead of away, and can narrow the uses allowed under the law—restricting fair use, chilling creative creation, and limiting the production of the types of works that copyright law wants to encourage. Reliance on rules of thumb could also prohibit us from advising others in their own fair use analysis.
Fair use’s flexibility
Fair use draws much of its power from its flexibility that allows it to apply to all kinds of uses that Congress never could have thought of when it passed our current copyright law in 1976. US copyright law includes several targeted exceptions to copyright infringement that are limited in application and scope to specific areas. The fair use doctrine, in contrast, can apply to a broad range of uses and technologies, and can even bolster the application of other copyright exceptions. It provides an essential function in copyright law by helping to ensure that copyright doesn’t prevent the type of creation it is supposed to foster. Instead of a list of permissible uses, the fair use analysis requires a balancing test, weighing four nonexclusive factors against each other to determine whether a use is fair or not. As such, a wide range of uses can potentially be fair, depending on context.
However, fair use’s flexibility also makes assessing whether a particular use is fair or not challenging if there is not a definitive court ruling on exactly those facts. There will always be arguments both for and against fair use in every situation, so pursuing certainty can lead to people avoiding reliance on fair use. If you are at all risk averse, how can you put your faith in something as undefined as fair use? As none other than the esteemed jurist Learned Hand once said: “the issue of fair use . . . is the most troublesome in the whole law of copyright.” (Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661)
To avoid legal uncertainty, people seek out ways to make the fair use analysis simpler. In this environment, several quasi-legal myths have emerged.
The Classroom Guidelines and CONTU: Sources of fair use myths
One of these myths – the so-called 10% rule – is a sorely outdated misconception that derives from government sponsored discussions and related conversations about the nature of fair use from around the time Congress passed our current copyright law and codified the fair use statute.
In 1974, Congress brought together representatives from publishers, academic institutions, legal experts, and the public to consider issues related to copying, fair use, and new technologies, as the Commission on New Technological Uses (CONTU). Among other things, CONTU’s final report to Congress offered recommendations about fair use as it relates to interlibrary loan and library photocopying.
Around the same time, another group of authors, publishers, and academics prepared the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodical (“Classroom Guidelines”) which offered recommendations to Congress on fair use in the academic setting. Congress eventually included these guidelines as part of its committee report on the new copyright law. And they continue to be errantly circulated by the United States Copyright Office in Circular 21, which has been widely criticized, including in this article by Sara Benson.
Notably, Congress adopted neither the CONTU final report recommendations on interlibrary loan nor the Classroom Guidelines’ suggestions. If Congress chose not to add these suggestions to the law, this suggests that Congress did not believe they belong as part of the law. Nevertheless, people today often seem to treat both like legal proxies. So, when even the Copyright Office seems to support their legal weight, it’s not surprising to see academic institutions often repeat the 10% or one chapter suggestion as if it is a legal rule.
But they are just suggestions, and we shouldn’t treat them as anything more. Indeed, with 50 years of technological developments and changes in user behaviors, it’s questionable what value they retain at all today. ARL published an excellent white paper on the CONTU guidelines in 2020 by Meg Oakley, Laura Quilter, and Sara Benson, arguing, as we do here, that it is time to move beyond CONTU and fully embrace fair use.
Some copyright myths stem from institutional policies or practices
So much of how we use and interact with copyrighted works today is through licensed digital materials, and license terms govern our use of those materials. Often, these terms restrict uses in ways that would conflict with what a court may consider a fair use.
Variances in institutional risk tolerance can affect the way that libraries interpret publisher-imposed restrictions that prohibit certain uses of licensed materials; conservative interpretations of contractual provisions have the potential to limit uses even beyond their intent. This can have implications for individual and collaborative research, hinder education and harm learning outcomes, and altogether negatively impact the work that libraries and academic institutions conduct.
Uncertainty about what a license allows can give librarians pause. For instance, in the context of copyright and accessibility, some librarians are hesitant to “remediate” (i.e., render accessible) a copyrighted electronic text document if there is no explicit contractual permission to do so. But copyright law allows libraries to remediate works for people with disabilities under Section 121, the Chafee Amendment, and Section 107 (fair use).
Publisher-imposed restrictions can push risk-averse institutions toward practices that are not required by copyright law, as illustrated in examples around creating and sharing of materials for people with disabilities. For instance, the AccessText Network (ATN) included a requirement for disability services offices (DSOs) to seek publisher permission for each remediated file requested by a student, and to destroy accessible files after the student graduates. DSOs may perceive these requirements as derived from the publishers’ copyrights rather than as contractual obligations. Once adopted, these institutional policies can persist even after publishers change their policies.
Copyright warnings imposed by publishers can also lead librarians and DSOs to second-guess whether explicit permission in a license or contract is needed in order to remediate works that are not available in accessible formats. A participant in a focus group of York University graduate students conducted by ARL and CARL highlighted not just how these copyright warnings show up, but also his understanding of how illogical they are:
“Sharing books, the texts go out of the way to be like ‘do not show this to anybody[.]’ And I was just thinking, if I didn’t need these services, and I took a book from the library, I would theoretically be able to pass it to another human being for them to read it. So the energy behind saying ‘do not share’ is a little bit weird…” (Read the full focus group transcript in the ARL/CARL Task Force on Marrakesh Treaty Implementation Final Report).
DMCA technical restrictions and online fair uses
Technical restrictions that online services have implemented in response to the Digital Millenium Copyright Act’s (DMCA) safe harbor provisions often regulate the ways people use copyrighted works online in ways that do not necessarily track the fair use statute, just as we have seen with the Classroom Guidelines, CONTU report, and publisher policies.
In 1998, at the dawn of the user generated web, Congress passed the DMCA to help facilitate the use of websites and services that host user content by creating protections for them against copyright infringement claims. If these websites follow the requirements in 17 USC § 512, they can avoid copyright infringement damages based on the actions of their users. In response, many websites and services have implemented technical measures to review and filter content that users upload onto the services.
These technical measures and other restrictive use policies create an environment that regulates the use of copyrighted works online more than the law does. In his article Internet Safe Harbors and the Transformation of Copyright Law, Emory Law professor and frequent commentator on the intersection of copyright law and technology, Matthew Sag, writes:
the balance struck by the traditional levers of copyright policy increasingly risks irrelevance. To a significant degree, the balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of a general modernization of copyright under the Digital Millennium Copyright Act (DMCA) in 1998. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors “DMCAplus” agreements) are now far more important determinants of online behavior.
We see this clearly from the supposed “rule” that you can use ten seconds (or some other number) of a song on a YouTube video and be fair use compliant. That in no way matches what the law says. Courts regularly tell us that there are no bright lines for how much of a work you can use and still be protected by fair use. Even using an entire work may be fair, depending on how you use it. But ten seconds or less is about how much of a copyrighted song you can use before triggering YouTube’s content filters. This is troubling. Unless a license applies to the use, it means that many wonderful, new, creative, productive, and fair uses of creative works may never be created for fear of running afoul of a content filter with no basis in the law.
These legal proxies can chill speech and restrict fair uses and other creative activities they ever happen
These rules of thumb are attractive because they purport to provide simple solutions and clear answers for what may or may not be a fair use, or seem to serve as reassurance for people working in copyright who may not have a legal background. As Amanda Wakaruk and her colleagues have found in their research on copyright anxiety and legal chill in higher education, those working in higher education are more worried about copyright than those outside the sector. But Wakaruk also found that copyright concerns can change practices, with real implications for research and pedagogy. Respondents who claimed that copyright concerns either caused them to avoid projects or hampered their projects described not using preferred images, readings or other preferred content in classes or research due to concerns about rights, and restricting access to digitized content even though it was unclear whether that was required by law.
It’s easy to understand why people may treat these short cuts as binding law and apply them uncritically. If fair use is confusing even to lawyers and judges, it is at least as arcane to the average person. Rules of thumb are quick, easy to apply, and seem to offer assurances that your use is fair. Why bother doing something different? However, fair use resists simple solutions and bright lines, and courts often remind us that fair use is extremely context dependent and requires a case-by-case analysis every time.
Consider these questions
Klosek and Wolfson offers this set of questions that libraries might consider when confronted by a copyright rule:
- What is the source for this rule—e.g. statute, regulation, institutional policy, contract term, other?
- Is the source of the rule the ultimate authority? (Is there an opportunity to renegotiate or relitigate? Is there a circuit split?)
- What is the rationale for the rule?
- Have changes in technology and business practices affected the rule’s rationale or implementation?
- Does this rule prohibit, narrow, complicate, or otherwise restrict activities that are lawful under fair use or other user rights?
- Who has a stake in perpetuating strict enforcement of this rule?
Conclusion
We think of these heuristics like urban legends: They may be based on something real, but over time they have taken on a life of their own, and they can affect the ways people behave, even if they don’t really exist. And like Bigfoot, Nessie, or that haunted house on the corner, the only way to fight them is to push back against the stories and focus on the truth.
We need to return the fair use analysis to the law itself. Copyright law seeks to balance the interests of rightsholders with those of users, and no doctrine captures that balance better than fair use. The system starts to break down when that balance tips too far in one direction. Fair use is essential to copyright working as intended, and these short cuts seem often to weigh too heavily against fair use, throwing off copyright’s balance of interests. But it doesn’t have to be this way. If we try to rely on the fair use law itself and best practices that draw directly from and align with the law and not these possibly helpful but also deceptive rules of thumb, maybe we can return the copyright balance to where it should be.
It is crucial to get the word out about the problems these copyright urban legends can pose for teaching, research, scholarship, and anything else that relies on fair use. Indeed, we regularly hear people say things about copyright that are simply untrue, and unchallenged or uncorrected, they can eventually develop into copyright urban legends that can effectively limit our rights in ways the law itself would not. We presented on this topic at the Kraemer Copyright Conference this summer, and we look forward to continuing the discussion. If you have examples or questions about these or other myths about copyright law, please get in touch with us through email or LinkedIn!
Katherine Klosek | kklosek@arl.org | https://www.linkedin.com/in/kklosek/
Stephen Wolfson | smw@upenn.edu | https://www.linkedin.com/in/stephenwolfson/
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