Category Archives: Fair Use

“Misleading on Fair Dealing”: Michael Geist on Educational Uses of Content in Canada

Posted November 29, 2018

The following post is part of a series entitled “Misleading on Fair Dealing,” by Professor Michael Geist of the University of Ottawa. Here, Geist shares his recent testimony before the House of Commons’ Standing Committee on Canadian Heritage. Canada is currently considering a comprehensive copyright review, and these comments shed light on the issues surrounding educational uses of copyrighted content. Authors Alliance has been actively following this and other discussions of fair use and educational limitations and exceptions to copyright, both in the U.S. and abroad. We thank Professor Geist for sharing his testimony with our readers; the original post can be viewed here.


I appeared yesterday before the Standing Committee on Canadian Heritage via videoconference as part of its study on remuneration models for artists and the creative industry. The Heritage study is designed to provide additional context and information for the Industry committee’s copyright review. My opening statement is posted below. It focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. An audio version of the opening statement is posted here.

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. I appear in a personal capacity as an independent academic representing only my own views.

I am sorry that I am unable to appear in person but I am grateful for the opportunity to participate in your study on remuneration models via videoconference.

I have been closely following the committee’s work on this issue, which will undoubtedly provide valuable input to the INDU committee’s copyright review. Last week I was dismayed to hear witnesses claim that Canada’s teachers, students and educational institutions are engaged in illegal activity. This claim is wrong and should be called out as such.

I’d like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court. While I think that the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose was better viewed evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions.

The majority of the 600 million – 380 million – involve K-12 copying data that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it is so old there are cabinet ministers who could have been the actual students in the K-12 schools at the time they were last surveyed on copying practices.

Of the outdated 380 million, 150 million involves copies that were over-compensated by tens of millions of dollars as determined by the Copyright Board and upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and it failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which as old as the K-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in Ms. Dabrusin or Mr. Blaney’s ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print coursepacks to electronic course material systems (CMS) is irrelevant from a copying perspective. This is wrong. The data is unequivocal: printed coursepacks have largely disappeared in favour of digital access. For example, the University of Calgary reports that only 53 courses used printed coursepacks last year for a student population of 30,000.

Why does this matter? Three reasons:

First, as universities and colleges shift to CMS, the content used changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of materials. The majority was journals and newspapers, much of which is available under open access licenses or licensed by other means.

Second, the amount of copying with CMS is far lower than with print. While Access Copyright argues there should be a one-to-one ratio – for every registered student the assumption should be that every page is accessed even for optional readings – the data (and common sense) tells us this is unlikely.

Third, CMS allows for the incorporation of licensed e-books. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of the e-books are from Canadian publishers and in many instances universities have licensed virtually everything offered by those Canadian publishers.

What this means is that the shift from an Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licenses that provide both access and reproduction. These licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for materials you already have.

With the increased spending, why do some report reduced revenues? There may be several reasons.

First, licensing is often perpetual, meaning that payment comes once, not as an annual royalty.

Second, many works aren’t being used or copied. UBC reports that 69% of their physical items have not been used since 2004.

Third, despite the shift to digital, Access Copyright’s Payback system excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licensing which permits copying for a specific course, yet Access Copyright has not entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors under-compensated for the digital revenues.

Let me conclude with a few thoughts on solutions on remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment, that comes directly from publishers and other aggregators, not Access Copyright.

Second, the government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback doesn’t compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

Third, governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, last week’s Economic Update announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage.

Fourth, non-copyright policies must be examined. For example, how is that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for Cancon qualification?

Despite the criticism, the 2012 reforms were about establishing rules to foster a digital market for the benefit of all stakeholders. It is still early in the process, but we have already seen a huge shift to digital for both education and the publishing industry, with hundreds of millions spent on digital licensing. That’s a win for everyone except for an outdated licence that now offers little value when compared to other market and legal options.


Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website,, provides coverage of intellectual property, technology, and copyright issues in Canada.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

Posted October 26, 2018

We thank Krista L. Cox, Director of Public Policy Initiatives at ARL, for the following analysis, which originally appeared on the ARL Policy Notes blog. Authors Alliance submitted an amicus brief in support of fair use in the second appeal to the Eleventh Circuit in 2017, and we continue to track the progress of the case.

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Library of Congress Expands 1201 Exemptions to All Nonfiction Multimedia E-books

Posted October 25, 2018
photo of CD with padlock

photo by 422737 |CC0

Today, the Library of Congress adopted exemptions to section 1201 of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of technical protection measures. As a part of this rulemaking process, Authors Alliance petitioned to renew the existing exemption that allows authors to bypass encryption to make fair use of film clips in nonfiction multimedia e-books offering film analysis, and we additionally advocated to modify the exemption to allow for the use of film clips in e-books for purposes other than film analysis and in fictional works.

We are pleased to report that the Library of Congress renewed the existing multimedia e-book exemptions and expanded the exemption to all nonfiction multimedia e-books (that is, the exemption is no longer limited to multimedia e-books offering film analysis). The Acting Register of Copyrights found that examples presented in our comments showed a variety of uses of short excerpts in nonfiction multimedia e-books to provide criticism or commentary beyond film analysis and also found that the brevity and transformative nature of the proposed uses favor an exemption because these uses are unlikely to substitute for the original work. The Acting Register concluded that an expansion to all nonfiction multimedia e-books is unlikely to harm, and may increase, the availability of copyrighted works and that the proposed uses will facilitate criticism, comment, teaching and/or scholarship.

The Acting Register declined to recommend to expand the exemption to cover fictional e-books, finding that the record lacked sufficient evidence demonstrating a need to expand the current exemption. We are disappointed that the Copyright Office and the Library of Congress passed on the opportunity to extend the exemption to authors of fictional multimedia e-books, such as fanfiction authors, whose transformative expression fits within the fair use doctrine.

We are grateful to the student attorneys and their supervisors at the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law for their work supporting this exemption.

Stay tuned for additional analysis of the 1201 rulemaking for multimedia e-books from the student attorneys at UC Irvine and Colorado Law.

Authors Alliance Testifies in Support of Fair Use at the Library of Congress

Posted April 12, 2018
Photo of the 1201 testimony team

Authors Alliance and friends in Washington – April 11, 2018

A key policy issue at Authors Alliance is our support for authors’ right to make fair use in the digital age. In May 2015, we participated in the U.S. Copyright Office’s sixth triennial rulemaking, and testified in support of exemptions to Section 1201 of the DMCA that would protect the fair use rights of e-book authors, allowing them to bypass the encryption on DVDs, Blu-ray, and other media in order to use film clips in multimedia e-books.

Now, for the seventh triennial rulemaking session in 2018, Authors Alliance has returned to Washington, DC to advocate for an expanded exemption that would allow for the use of film clips in e-books for purposes other than film analysis, and in fictional works as well as nonfiction. The exemption, which is explained in greater detail here, would expand on the more limited exemption that the Copyright Office has already recommended be renewed. Yesterday, Executive Director Brianna Schofield testified in support of this modified exemption in a hearing at the Library of Congress alongside a team of authors, filmmakers, and scholars, as well as representatives from the Intellectual Property, Arts, and Technology Clinic at the UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law.

We were very glad to have the opportunity to answer the Office’s questions at the hearing and to provide additional information demonstrating why these exemptions are important to authors. Authors Alliance provided examples showing the importance of modifying the exemption to no longer require that e-books taking advantage of the exemption “offer film analysis.” Under the current exemption, the authors who want to incorporate film clips in their e-books at best have their projects clouded with uncertainty as to whether the current exemption applies to these uses, and at worst they abandon these projects after concluding that exceptions won’t apply.

We hope that our efforts in this rulemaking will help the Copyright Office recognize that authors should be able to make responsible fair use of film clips in fields beyond film analysis and that these uses should be expanded to include fictional as well as nonfiction e-books.

We expect to hear the results of the hearing later this year, when the Librarian of Congress adopts a final rule for the seventh triennial rulemaking session. As always, we will provide timely updates on the status of these exemptions and our other policy and advocacy issues.

Authors Alliance Submits Reply Comment in 2018 DMCA Rulemaking

Posted March 15, 2018
photo of CD with padlock

photo by 422737 |CC0

In December 2017, Authors Alliance submitted comments to the U.S. Copyright Office in support of a modified exemption to Section 1201 of the Digital Millennium Copyright Act (DMCA) for multimedia e-books. The proposed modification would broaden the application of the current exemption (which allows for lawful circumvention of digital rights management technologies in non-fiction works offering film analysis) to embrace fictional e-books and e-books on subjects other than film analysis. This would allow a more diverse group of creators, such as fanfiction authors, to access the clips they need from DVD and Blu-ray discs to make fair use of video clips in their e-books.

Responses to that initial comment were filed last month. Now, joined by the American Association of University Professors, Organization for Transformative Works, the Interactive Fiction Technology Foundation, and Professor Bobette Buster, we have in turn submitted reply comments as part of the U.S. Copyright Office’s seventh triennial rulemaking process for 2018. The full text of the comment is included below.

Our comment explains that creators are interested in exercising their fair use rights by engaging in criticism and commentary in their creations, and it provides evidence that creators of content have been and will continue to be harmed absent the proposed modification to the current exemption.

Our advocacy in this area is ongoing. In 2015, as part of the sixth triennial rulemaking, Authors Alliance traveled to Washington, DC to testify in hearings before the U.S. Copyright Office. We will do so again in April of this year and will keep our readers updated on that testimony, as well as the results of the seventh triennial rulemaking.

2018.03.14 Reply Comment MM EBooks AuAll AAUP OTW IFTF Buster


Revisiting Georgia State: Fair Use and Academic Incentives

Posted March 1, 2018

What effect does fair use have on incentives to create? For some academic authors, there is growing evidence that fair use will not diminish, and may even enhance, their incentives to create and distribute scholarly works because it promotes their goals of advancing the progress of knowledge, builds reputational capital, and increases the impact of their works.

Last year, Authors Alliance filed an amicus brief with the Eleventh Circuit in support of Georgia State University’s fair use defense in Cambridge University Press v. Becker. One issue we discussed in our brief is how our members’ experiences accord with the district court’s conclusion that academic authorial incentives to create scholarly book chapters would not be impaired by a fair use ruling. We explained that the primary motivation of academic authors to write scholarly book chapters is generally to share the knowledge and insights they have gained, and the type of reward that academic authors have generally sought and hoped to attain through writing scholarly book chapters is enhancement of their reputations.

Our brief highlighted quotes from several authors of book chapters at issue in the case who reflected on the benefit of fair use to their goals of reaching readers and contributing to academic discourse. For example, Norma Mertz, Professor of Higher Education Administration at University of Tennessee, Knoxville, wrote “I have no objection to the fair use of chapters from my books. Indeed, I find the suit to prevent use of such chapters a serious hindrance to the advancement of knowledge.” Other authors pointed to the benefits of publishing academic works. Douglas Harper, Professor Emeritus of Sociology at Duquesne University, wrote “There is reputational benefit… to doing this work. … The point of this work is to share it!”

A subsequent survey of authors conducted by Brandon Butler and David Hansen reinforced these observations about academic authors’ incentives to create. Butler and Hansen wanted to test the hypothesis that most academics expect their work to be used freely for teaching, partly because academic authors make such uses themselves. They surveyed the authors affected by Georgia State litigation—primarily academic authors whose works had been excerpted by GSU professors in support of their teaching. Their results, although based on a small sample size, suggest that academic authors expect that their works will be used for educational purposes; indeed, many of them make such uses of others’ works as well, and are not highly incentivized to write by copyright restrictions or the promise of royalties.

As Hansen and Butler write in their survey analysis, “Authors faced with a publishing contract that includes a copyright transfer or license should consider whether they trust the publisher to enforce those rights in ways consistent with academic values and expectations.” This and other issues of interest to those considering publication options will be addressed in our forthcoming guide to publication contracts. The guide will be the fourth volume in our series of educational handbooks—stay tuned for a release later this year.

In the meantime:

Newly Updated: Fair Use FAQ

Posted February 28, 2018

Fair use has always been a key issue for Authors Alliance. When we launched in 2014, we created a Fair Use FAQ to help authors navigate this complex topic. Now, to celebrate Fair Use Week and our recently published guide to Fair Use for Nonfiction Authors, we’ve expanded and updated the FAQ to provide a comprehensive summary of key points. Read on to learn more!

  1. What is fair use anyway?
  2. What does it mean to say a use is “transformative”?
  3. What does it mean to say a use is “non-transformative”?
  4. Can I still claim fair use if I am using copyrighted material that is highly creative?
  5. Can I still claim fair use if I am using copyrighted material for commercial purposes?
  6. Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?
  7. Can I still claim fair use if I want to use copyrighted material that is unpublished?
  8. Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?
  9. How does a work’s copyright status affect fair use?
  10. How does a work’s orphan work status affect fair use?
  11. Can contractual terms governing access to a work restrict the availability of fair use?
  12. Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?
  13. What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?
  14. Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?
  15. Is fair use really as unpredictable as some people say?
  16. What if there is no on-point best practice guide for me?
  17. Where can I learn more?

What is fair use anyway?

In U.S. copyright law, fair use is a use of a copyrighted work that does not infringe the exclusive rights that the law confers on authors and other rights holders.

Section 107 of the U.S. copyright act identifies four factors that courts should consider in determining whether a use is fair or infringing:

  1. The purpose and character of the challenged use;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the challenged use; and
  4. The harm the challenged use is likely to cause to the market or potential market for the work.

No factor is dispositive; all must be weighed together.

Uses for criticism, commentary, news reporting, research, scholarship, and teaching are identified in the statute as examples of favored uses. Noncommercial uses are generally more likely than commercial uses to be fair. Transformative uses are also more likely than non-transformative uses to be fair.

The scope of fair use tends to be somewhat broader for fact-intensive works, especially when done for one of the favored purposes.

A good shorthand way of considering whether a use you want to make of another’s work will be fair is whether the amount you borrowed from the other’s work is reasonable in light of your purpose and unlikely to supplant demand for purchase of the original.

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What does it mean to say a use is “transformative”?

A use will be considered “transformative” if it:

  1. Actually transforms expression in the work, as a parody of a song might do;
  2. Is included in a new work of authorship, as quoting from the writings of a person in a biography;
  3. Is used for a different purpose than the original, causing it to have a different meaning, as when a newspaper publishes a photograph that has become controversial.

Transformative uses will not always be fair. A new arrangement of a song, for instance, may well infringe the derivative work right. But especially when done for purposes of criticism or commentary, the transformativeness of a use will tend to tip in favor of fair use.

Courts have recently been receptive to the idea that copyright owners do not have the right to control all transformative uses of their works. Transformative uses are less likely than non-transformative uses to pose a risk of supplanting market demand for a work.

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What does it mean to say a use is “non-transformative”?

A use will be considered “non-transformative” if it is, for example, an exact copy of a work or part of a work. Making a time-shift copy of a television program is an example of a non-transformative use that courts have deemed fair. Posting a chapter of a book on an electronic course reserve system is another example of a non-transformative use. (The Cambridge University Press v. Becker case, which is presently pending before an appellate court, is testing whether this kind of use is fair.) Scanning a photograph you like and posting it online is a third example of a non-transformative use.

Non-transformative uses may be and often are fair uses, but they are somewhat less likely to be fair uses insofar as they pose a stronger risk of harming the market for the work. If someone makes a copy of a movie or computer program, for instance, instead of buying a copy of his own, that non-transformative use is more likely to have a negative effect on the copyright owner’s market. Even though one person’s peer-to-peer file-sharing of music or a movie would seem to be relatively trivial, courts take into account that if they say this use is fair, then many others will do the same thing and the aggregation of these uses are likely to cause market harm.

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Can I still claim fair use if I am using copyrighted material that is highly creative?

Yes. While courts do consider whether the copyrighted material used is primarily factual or creative under the second factor, “the nature of the work,” this factor is rarely decisive on its own. Courts still must weigh all four factors, including the “purpose of the use.” Where the purpose of the use is transformative, such as when a nonfiction author comments on copyrighted material or uses copyrighted material to support a point, and the amount used is reasonable, the second factor rarely affects the final outcome of fair use cases.

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Can I still claim fair use if I am using copyrighted material for commercial purposes?

Yes. While “noncommercial” uses may be a plus in a fair use analysis, there are no categorical rules: Commercial uses can be fair use, and not all noncommercial uses will be fair use. In fact, some of the important court victories for fair use over the past two decades have been won by defendants whose activities were commercial, including musicians, publishers, and artists who sell their work (sometimes at substantial prices).

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Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?

Yes. You do not have to ask permission or alert the copyright holder when a use of materials is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims. In fact, the Supreme Court has said that asking for permission may be a good faith effort to avoid litigation.

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Can I still claim fair use if I want to use copyrighted material that is unpublished?

Yes. Congress amended the Copyright Act in 1992 to explicitly allow for fair use when using unpublished works after several court decisions suggested that the use of unpublished materials would rarely be fair use. Under current copyright law, the fact that a work is unpublished “shall not itself bar a finding of fair use if such finding is made upon consideration of all the [fair use] factors.”

While a court may still consider a work’s unpublished status to weigh against fair use when evaluating the “nature of the work,” this factor is rarely decisive on its own and courts still must weigh all of the fair use factors, including the purpose of the use. The purpose of the use may weigh against fair use if the unpublished material is being used in a frivolous or exploitative manner. On the other hand, the purpose of the use may weigh in favor of fair use if the unpublished material transforms the original material (by, for example, using the original material as the object of criticism or commentary) and contributes to the public’s interest in advancing knowledge.

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Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?

Charts, graphs, and tables may be protected by copyright, but the underlying facts are not copyrightable. Creative choices in the way that facts are presented in a chart, graph, or table may be sufficiently original to warrant copyright protection. That said, where applicable, you may still be able to rely on fair use to use a chart, graph, or table that includes expressive elements.

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How does a work’s copyright status affect fair use?

Copying of works that are not protected by copyright is not copyright infringement, regardless of fair use. But sometimes it can be difficult to determine whether a work is protected by copyright. For example, you may not be able to determine whether a work’s copyright has expired, or you may not be sure whether a scientific chart has the requisite level of creativity to warrant copyright protection. Even where you cannot determine a work’s copyright status, you may still want to understand whether the use of the material would be permitted by fair use should the material be protected by copyright. In fact, in some cases determining whether the use would be permitted by fair use may be easier than resolving the work’s copyright status.

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How does a work’s orphan work status affect fair use?

Orphan works are works for which it is difficult or impossible to identify or locate the work’s copyright owner, even after a diligent search. The use of an orphan work may be permitted by fair use, just like any other work. In fact, orphan works often have characteristics that make fair use more likely. For example, orphan works are by definition not active in the market, limiting any resulting economic harm to rightsholders. In some cases, determining whether the use of an orphan work would be permitted by fair use may be significantly easier than securing permission from a rights holder that, by definition, is difficult or even impossible to track down.

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Can contractual terms governing access to a work restrict the availability of fair use?

Yes. For example, some archives, museums, and commercial collections that control access to works place contractual restrictions on the use of those works, even when use of the work would otherwise be permitted by fair use (and, in some cases, even when the work itself is in the public domain!). This is beginning to change, and some archives and museums have already abandoned these practices. However, if you are a party to such a contract, your ability to use materials you’ve accessed may be limited by the terms of the contract. For example, a biographer who accesses her subject’s personal papers through an archive may find that, as a condition of accessing those materials, the subject’s estate forbids quoting from the materials without the express permission of the estate. Similarly, an art critic may find that he has agreed to terms governing the use of photographs he accessed through an online archive.

At least some courts have held that such contracts may be enforced, even if the restricted use would be fair use as a matter of copyright law. In these cases, nonfiction authors cannot rely on fair use since demands for permission in this context are based on contractual claims, not copyright. As such, nonfiction authors should pay careful attention to the conditions of access to source materials and may want to consider negotiating for better terms that do not restrict their research and writing goals.

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Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?

No. Some estates are notoriously aggressive in trying to prevent the use of materials to which they own the copyrights. However, just because a copyright owner is forceful in asserting copyright claims doesn’t make fair use any more or less likely. It may, however, change your assessment of the practical risk that a copyright owner might complain or sue. Authors in this situation may be especially interested in obtaining errors and omissions coverage prior to publicizing their work.

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What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?

Some publishers may require that authors get permission to use copyrighted materials in their works instead of allowing them to rely on fair use. If you find yourself in this situation, you may find it helpful to ask your publisher to reconsider its position and to explain why you think your intended use is protected by fair use. You may also want to share with them related codes of best practices, if relevant. If fair use is important to you or essential to your project, you may want to search for a publisher that recognizes fair use before signing a publishing contract.

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Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?

No. Fair use is a limitation on exclusive right under copyright and does not apply to other legal claims. When using third party materials, authors should consider legal issues beyond copyright, such as contractual restrictions, privacy rights, trademark law, right of publicity, and defamation; and community norms, like rules against academic plagiarism.

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Is fair use really as unpredictable as some people say?

It is sometimes said that fair use is unpredictable. Larry Lessig, for instance, spoke of fair use as “the right to hire a lawyer.” For some people, this perception of unpredictability has a chilling effect (that is, they are unwilling to take the risk that the use will be held unfair).

To provide guidance, the Center for Media and Social Impact at American University has published some “best practices” guidelines to help people become more comfortable with making fair uses, including one for documentary filmmakers and one for user-generated video content (remixes and mashups). The Center for Media and Social Impact has published a template to help users in particular communities to form their own best practices guidelines.

The “best practices” approach is catching on.  In fact, Authors Alliance published a guide to Fair Use for Nonfiction Authors, which features guidance based on a meta-analysis of existing best practices guides.

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What if there is no on-point best practice guide for me?

Even if no best practice guidelines exist for your community, it is worth knowing that there is more predictability in the fair use caselaw than some have suggested. As noted above, a use is likely to be fair if done for a purpose such as criticism, comment, news reporting, scholarship, teaching and research as long as what you take from another’s work is reasonable in light of your purpose. Here are some examples:

  • Quoting small amounts of text (8% or less) from each of 25 writings in a critical biography of L. Ron Hubbard was held a fair use in New Era Publications Int’l ApS v. Carol Publishing Group in 1990.
  • Reproducing seven posters in significantly reduced sizes that had once advertised Grateful Dead concerts in a 480 page book on the cultural history of the band was held to a fair use in Bill Graham Archives v. Dorling Kindersley in 2006.
  • Preparing a reference work about the characters, plot, and special features of fictional works was held to be fair use in Warner Bros. Entertainment v. RDR Books (although RDR had to change some places where there was very close paraphrasing of passages from Harry Potter novels) in 2008.
  • Scanning student papers into a database designed to detect plagiarism was held fair use in A.V. v. iParadigms in 2009.
  • Retelling the story of Gone With the Wind from the vantage point of a slave was held a fair use in Suntrust Bank v. Houghton Mifflin Co. (However, an unauthorized sequel to Catcher in the Rye, imagining Holden Caulfield as an old man, was held unfair in Salinger v. Colting. Sequels, in general, are likely to be considered infringing derivative works. One reason the use was fair in Suntrust was because of it was a critical commentary on the original and the Mitchell estate made clear it would never have licensed this kind of use of the famous novel.)

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Where can I learn more?

For further reading on fair use, we recommend:

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Amanda Levendowski on Fair Use for Fairer AI

Posted February 27, 2018
illustration on fair use by Gary Zamchick

Illustration courtesy of Gary Zamchick | Used with permission

The principles of copyright law sometimes have a way of appearing in unexpected places. Recently we featured an article by Christopher Sprigman that examines assumptions about copyright as a spur to creativity by considering examples as diverse as Italian opera and Bollywood movies.

Today, as part of Fair Use Week, we are highlighting new research by NYU Clinical Teaching Fellow Amanda Levendowski that explores the ways in which copyright law can negatively influence the quality of artificial intelligence (AI), and how fair use might be part of the solution. She describes how there has been an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing.

As the computer science adage “garbage in, garbage out,” succinctly puts it, an AI system is only as good as the information provided to it. Training using biased or otherwise unsatisfactory data can result in flawed and incomplete outcomes. As Levendowski writes, “[J]ust as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. … The rules of copyright law…privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased.”

With potential statutory damages running as high $150,000 per infringed work, AI creators often to turn to easily available, legally low-risk works train AI systems, often resulting in what Levendowski calls “biased, low-friction data” (BLFD). One such example is the use of the “Enron emails”, the 1.6 million emails sent among Enron employees that are publicly available online, as a go-to dataset for training AI systems. As Levendowski puts it, “If you think that there might be significant biases embedded in emails sent among employees of [a] Texas oil-and-gas company that collapsed under federal investigation for fraud stemming from systemic, institutionalized unethical culture, you’d be right: researchers have used the Enron emails specifically to analyze gender bias and power dynamics.”

What’s more, Levendowski describes how copyright law favors incumbent AI creators who can use training data that are a byproduct of another activity (such as the messages and photos Facebook uses to train its systems) or that it can afford to purchase. This can play a determinative role in which companies can effectively compete in the marketplace.

So how can we fix AI’s implicit bias problem? In her article, Levendowski argues that if we hope to create less biased AI systems, we need to use copyrighted works as training data. Happily, copyright law has built-in tools that help to balance the interests of copyright owners against the interests of onward users and the public: One of these tools is fair use. By examining the use of copyrighted works as AI training data through the lens of fair use cases involving computational technologies, Levendowski suggests that relying on fair use to use copyrighted materials in training systems could provide a promising path forward to combat bias and make AI more inclusive and more accurate.

Read the full article on SSRN; and learn more about Levendowski and her research on her website.

Amanda Levendowski is a Clinical Teaching Fellow with the NYU Technology Law and Policy Clinic. Her clinical projects and research address how we can develop practical approaches to digital problems. Amanda previously practiced copyright, trademark, Internet, and privacy law at Kirkland & Ellis and Cooley LLP.

Guide to Fair Use for Nonfiction Authors Now in Print!

Posted February 26, 2018

Authors Alliance handbooks

In celebration of Fair Use Week, we are pleased to announce the print release of our guide to Fair Use for Nonfiction Authors.

This past fall, we published the guide as a digital file under a Creative Commons license with the goal of putting it in reach of anyone who might need it. You can find a free download of the guide on our fair use resource page.

But digital can’t reach everyone, and many of us find paper resources easier to read and navigate. For everyone with a preference for paper, and for those who want to support Authors Alliance’s continuing non-profit mission, Fair Use for Nonfiction Authors is now available as a handsome softcover book. After joining or donating, purchasing a guide from us is one of the best ways to stand behind our organization. Buy one today from our store and we’ll throw in some Authors Alliance stickers.

“I’ve read and reviewed many explanations available about fair use for the creators of nonfiction works. This is—by far—one of the best. Do not waste any time before you start reading and digesting the sections that pertain to the kind of nonfiction work you are creating, whether it is a written work or an audio-visual work.  Every category of such works can benefit from the ability to use material pursuant to the doctrine of fair use.”
—Michael Donaldson
Founding Partner, Donaldson + Callif

To make your Authors Alliance reference library complete, Understanding Rights Reversion and Understanding Open Access, the first two volumes in our series of guidebooks, are still available via free digital download as well as in book format from our store.

Authors Alliance Presents Workshop on Fair Use at California Lawyers For the Arts

Posted February 8, 2018
photo of sharpened pencil and notebook

photo by Angelina Litvin on Unsplash

On Tuesday, February 13, Brianna Schofield of Authors Alliance will team up with Robert Kirk Walker of the Samuelson Clinic at the UC Berkeley School of Law to present a workshop on fair use with California Lawyers for the Arts. The workshop, “Demystifying Fair Use: A Crash Course For Authors”  will provide an overview of the law of fair use, explain best practices for fair use as developed by creative communities, and showcase our new guide to fair use for nonfiction authors.

The workshop is open to the public, and will take place at 7:00 pm in downtown Berkeley. For more information and to register, click here.