Understanding Fair Use Dr. Frank Hoffmann SHSU - LS530

Authorities on Fair Use (Rank Order) Legislation Legislation Court Decisions (federal > local) Court Decisions (federal > local) Government-Sponsored Guidelines Government-Sponsored Guidelines  federal committee reports  state agency publications Professional Association Recommendations Professional Association Recommendations Copyright Holding Entity Interpretations Copyright Holding Entity Interpretations Scholarly Research/Publication Scholarly Research/Publication Local Institutional Administrators Local Institutional Administrators Personal Views Personal Views

Factors in Determination of Fair Use Purpose of the use Purpose of the use Nature of the work Nature of the work Amount used Amount used Effect on the economic value of-- or potential market for--the work Effect on the economic value of-- or potential market for--the work

Purpose of use standard met if that use is: for a nonprofit educational purpose for a nonprofit educational purpose to make critical, social, or political commentary to make critical, social, or political commentary to further the cause of learning to further the cause of learning

Nature of the work standard is met insofar as the work is vested with a public interest the work is vested with a public interest works vested with a public interest contain works vested with a public interest contain  public domain materials  informational materials relevant for an informed citizenry

Amount used standard is met where the amount is reasonable in both qualitative and quantitative terms the amount is reasonable in both qualitative and quantitative terms what is “reasonable” is determined by what is “reasonable” is determined by  size of the copyrighted work  size of the work in which it is used  economic effect of the portion taken to both works this factor problemmatical since it’s a function of the other 3 factors this factor problemmatical since it’s a function of the other 3 factors

Effect on economic value of work standard met if the use doesn’t have an adverse impact on marketing in light of one or more of the following factors: the use doesn’t have an adverse impact on marketing in light of one or more of the following factors:  accessibility of the work  date of the work  economic life of the work  availablity of copies on the market  price of the work  evidence of abandonment  courts consider this factor to be most important  i.e., any copyright owner who doesn’t make a work accessible undermines copyright bargain  in such cases, right of fair use is enlarged

Application of the rules of fair use Copyright owner’s absolute control of usage undercuts public’s right to use the material for learning Copyright owner’s absolute control of usage undercuts public’s right to use the material for learning On the other hand, not in the public interest to disregard copyright owner’s economic rights On the other hand, not in the public interest to disregard copyright owner’s economic rights fair use doctrine requires a balance between these 2 viewpoints fair use doctrine requires a balance between these 2 viewpoints post-1976 court decisions, however, have not maintained this balanced view post-1976 court decisions, however, have not maintained this balanced view  reason: copyright ownership taken to mean ownership of the copyright work  in actuality, copyright law merely creates rights in marketing the work vs. control after copy is sold

Forces behind the corrupt fair use doctrine Court bias Court bias  too often view copyright as a plenary property rather than a limited statutory right based on its own venerable policies, principles, and rules  influenced by corporate lobbying activities Uninformed judges Uninformed judges Copyright scholars have merely reported what courts do, not why they should have done it differently Copyright scholars have merely reported what courts do, not why they should have done it differently