Fair Use Doctrine
Fair Use: The Basics
The fair use clause is one of the Copyright Act's most important provisions. The clause, which is codified at Section 107 of the Copyright Act, allows teachers, news reporters, critics, researchers, and others to use copyrighted materials in certain circumstances without having to pay royalties or be held liable for copyright infringement.
The strength of the "fair use" privilege, however, has been eroded by a combination of technology and legislation. As more copyrighted works are produced digitally, manufacturers embed digital "locks" within the products' code, making it impossible for customers to use the item as they see fit. Additionally, recent legislation like the Digital Millennium Copyright Act has sanctioned copyright owners' ability to digitally lock their content, and criminalizes attempts to break such locks, even if the conduct otherwise would be proper under the "fair use" privilege.
Another major “fair use” issue is raised by “peer-to-peer” file sharing software capable of both infringing and non-infringing uses. On July 27, 2005, the Supreme Court in MGM v. Grokster held that while P2P software is capable of non-infringing uses, if a distributor “induces” infringement, as shown by clear expression or other affirmative steps, it is liable for the resulting acts of end-user infringement. Libraries and other fair use advocates applauded the Court’s failure to overturn the landmark 1984 “Sony Betamax” ruling that the distributor of a technology with both infringing and non-infringing uses is not liable for infringement by the end user.
Fair use issues are intertwined with digital rights management ("DRM") and Digital Millennium Copyright Act ("DMCA") issues. For more information on those issues, please see the DRM and DMCA sections of our web site.
Materials
The following information will help AALL members understand the fair use doctrine and how it affects libraries and librarians.
Member Articles
Documents
- Freedom
and Innovation Revitalizing US Entrepreneurship (FAIR USE) Act of 2007, HR 1201. The FAIR USE Act is co-sponsored
by Congressmen Rick Boucher (D-VA), Congresswomen Zoe Lofgren (D-CA) and Congressman John Doolittle (R-CA). The
FAIR USE Act makes permanent the six exemptions from the prohibition on circumvention of technological measures
in section 1201 of the Digital Millennium Copyright Act (DMCA). It would also extend the determinations of the Librarian
of Congress in this area. The Bill has been referred to the Subcommittee on Courts, the Internet, and Intellectual
Property.
- Press Release (Rep. Boucher web site)
- Benefit Authors without Limiting Advancement or
Net Consumer Expectations Act ("BALANCE Act"). Rep. Zoe Lofgren (D-CA) re-introduced legislation
to allow consumers to make copies of purchased digital media for use in their car, computer or mobile device. The
bill affirms the application of the fair use privilege to digital works and transmissions.(H.R. 4536, 109th Congress).
The co-sponsors were Rep. Rick Boucher (VA) and Rep. John Doolittle (CA) The bill was referred to the House Judiciary
committee on Dec. 14, 2005. (THOMAS)
- Press Release (Rep. Lofgren web site)
- Business Software Alliance opposition (BSA website)
- Boucher Re-Introduces Digital Fair Use Bill :
Rep. Rick Boucher (D-VA) has re-introduced a bill that reaffirms fair use in the digital age. The bill is entitled
the "Digital Media Consumers' Rights Act of 2005." (H.R. 1201, 109th Congress) The bill was referred to
the House Subcommittee on Commerce, Trade and Consumer Protection. (THOMAS)
- DMCRA Overview (Rep. Boucher web site)
- Section Analysis (Rep. Boucher web site)
- Consumer Technology Bill of Rights: A consumer manifesto for the digital age. (DigitalConsumer.org)
- What is Fair Use?: A primer on the fair use provision of the Copyright Act. (ALA Washington Office)
- Stanford Copyright & Fair Use Center: Information clearinghouse on the Copyright Act's fair use clause. (Stanford University Libraries)
- Fair Use Guidelines: Fair use guidelines for librarians that apply to a variety of media, under a variety of circumstances. (Copyright Management Center, Indiana University-Perdue University Indianapolis)
- Fair Use in the Electronic Age: A joint statement by the nation's library associations concerning the continued importance of fair use during a time when copyrighted works are created digitally. (Association of Research Libraries)
- Fair Use v. DMCA anticircumvention rules. (ars technica)
- Fair Use of Copyrighted Materials (University of Texas' Copyright Crash Course)
- Fair Use Resources dealing with online video such as remixes, mashups, and fan tributes including a selection of Codes of Best Practices (American University Center for Social Media)
- Frequently Asked Questions (and Answers) about Copyright and Fair Use from Chilling Effects Clearinghouse, a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.
- "Will fair use survive? Free Expression in the Age of Copyright Control", A 2005 Public Policy Report from the Brennan Center for Justice.
Case Notes
- Google Book Search Settlement Agreement.The
settlement is in a state of limbo pending a Justice
Department inquiry regarding anti-trust issues.
- Issue Brief by James Grimmelmann, American Constitution Society for Law and Policy.
- Article by Mimi Calter, Stanford University Libraries.
- MGM v. Grokster, 545 U.S. 913, 125 S.Ct 2764 (June 27, 2005). More information on the case, including links to an extensive list of amicus briefs, can be found on the Electronic Freedom Foundation’s web site.