{"id":27,"date":"2021-03-06T19:45:04","date_gmt":"2021-03-06T19:45:04","guid":{"rendered":"https:\/\/openpress.wheatoncollege.edu\/fairuseforopened\/back-matter\/appendix-two-fair-use-then-and-now\/"},"modified":"2021-03-06T19:45:04","modified_gmt":"2021-03-06T19:45:04","slug":"appendix-two-fair-use-then-and-now","status":"publish","type":"back-matter","link":"https:\/\/openpress.wheatoncollege.edu\/fairuseforopened\/back-matter\/appendix-two-fair-use-then-and-now\/","title":{"raw":"Appendix Two: Fair Use Then and Now","rendered":"Appendix Two: Fair Use Then and Now"},"content":{"raw":"

<\/a>The Fair Use Right and the Function of Copyright<\/h1>\nThe goal of US copyright law is to promote the progress of knowledge and culture. Its best-known feature is protection of copyright owners\u2019 rights, but importantly the law includes protections for the public, too. Copying, quoting, recontextualizing, and reusing existing cultural and informational materials are critically important to creating, spreading, and preserving knowledge and culture, so the law strikes a balance between rightsholder control and public access and reuse.\n\nThis balance is part of the social bargain at the heart of our copyright law. Creators get some exclusive rights in new works, not as an end in itself but to encourage them to produce and communicate new knowledge. At the same time, copyright protection is limited to reflect the interests of the law\u2019s primary intended beneficiary\u2014the public. So the statute also reflects the access rights of current and future generations of creators, who may want to refer to or invoke copyrighted culture; librarians, archivists, and curators who collect and preserve culture for current and future users; and scholars, teachers, and students who need access to culture for research, instruction, or study.\n\nThe public interest limits on copyright begin with the fact that copyright lasts for a limited time. After that, works enter the public domain and are free for use by all. Even so, the duration of protection stretches for generations, far beyond the useful life of most copyrighted materials.\n\nSo, there are other limitations that allow the use of material that still is protected by copyright without permission from or payment to the owner. Otherwise, we would all lose the benefit of new work that builds on the past. Fair use is the most flexible and widely applicable of these limitations.[footnote]Sections 110(1) and (2) of the Copyright Act provide some narrowly defined educational exceptions \u2013 relatively useful where face-to-face teaching in a physical classroom is concerned, and somewhat less so for lessons delivered by technological means, including over the Internet. They have no direct bearing on the creation of OER or other learning materials for general circulation. On the other hand, the existence of these does not limit the application of fair use in such situations.[\/footnote]\n\nAs Section 107 of the Copyright Act of 1976 provides, \u201cfair use of a copyright work . . . is not an infringement of copyright.\u201d[footnote]In its entirety, Section 107 reads:\n
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include\u2014\n
    \n \t
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;<\/li>\n \t
  2. the nature of the copyrighted work;<\/li>\n \t
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and<\/li>\n \t
  4. the effect of the use upon the potential market for or value of the copyrighted work.<\/li>\n<\/ol>\nThe 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 above factors.<\/blockquote>\n[\/footnote]\n\nFair use has been part of US copyright law for more than 170 years, and was codified in the 1976 Act. Where it applies, fair use is a right and not a mere privilege. The fact that it is asserted procedurally as an affirmative defense should not affect this characterization. Like other rights, fair use derives strength from its flexibility. Rather than following a formula, lawyers and judges assess whether a particular use of copyrighted material is \u201cfair\u201d according to an \u201cequitable rule of reason.\u201d This means taking into account all facts and circumstances to decide whether an unlicensed use of copyrighted material generates social or cultural benefits greater than the cost imposed on the copyright owner. Similarly, practitioners in creative fields can develop analytical structures to evaluate and rely on fair use in the professional situations they encounter regularly.\n

    <\/a>Fair Use and Education<\/h1>\nTurning to fair use in educational practice, the first thing to be said is that copyright law generally favors this category of uses. Thus, for example, even educators who honestly but mistakenly rely on fair use get a significant break under Sec. 504(c) of the Copyright Act, which waives so-called statutory damages under these circumstances for non-profit schools and their employees. At the same time, however, educational use does not constitute a free pass. In 2019, for example, when a Houston high school systematically reproduced copyrighted review sheets, removed copyright information, and put them online for students, the school district ended up settling an infringement case for millions of dollars.\n\nThat said, there are few (if any) genuinely useful judicial precedents about educational fair use. Two radically different stories may be advanced to account for this. In one, the dearth of attention to educational fair use is explained by the fact that education\u2019s highly privileged position in the universe of fair use is too fundamental to have required additional legislative attention or attracted much in the way of court challenges. In other words, copyright owners have seldom engaged with the unlicensed use of copyrighted material by educators precisely because they have no strong case, and much to lose in the court of public opinion. In the other account, the explanation is simply that\u2014at least until quite recently\u2014educational uses haven\u2019t generally been a source of particular, sustained concern to copyright owners. Obviously, as the education market grows, that concern is on the rise!\n\nThus, educators need to know where to look for guidance. Unfortunately, one of the main sources that educators used until recently was the so-called \u201cClassroom Guidelines\u201d that date back to the photocopying wars of the 1970\u2019s. Those guidelines and their various spinoffs are generally useless \u2013 or worse \u2013 where understanding and implementing today\u2019s fair use is concerned.\n\nHappily, recent judicial decisions still can provide professionals engaged in educational practice \u2013 including authors and distributors of OER \u2013 strong positive guidance about how to apply the doctrine, by way of analogy. Indeed, there has never been as strong a general judicial consensus about the nature of the fair use doctrine as the one that exists today.\n

    <\/a>Fair Use and Access to Educational Materials<\/h1>\nSince the Copyright Act\u2019s 1978 codification, accessibility in general has had a privileged place in the domain of fair use, and that\u2019s evidenced in part by the language of the legislative history of Section 107, which discusses providing texts to print disabled individuals as a core example of fair use in action. More recently, judicial applications of fair use have emphasized the ways in which fair use can help to assure that students, teachers, and scholars from all kinds can enjoy equal access to learning. For example, Author\u2019s Guild v HathiTrust, <\/em>755 F.3d 87 (2d Cir. 2014) held that making a vast corpus of copyrighted books available to learners and researchers was fair use. While resolving one set of issues, HathiTrust <\/em>invites us to think about other ways that the fair use doctrine can be applied to break down the barriers that face many in achieving equitable access to learning materials. Finally, the Marrakesh<\/em> Treaty to Facilitate Access to Published Works by Visually Impaired Persons and<\/em> Persons with Print Disabilities<\/em>, was ratified in 2016. The treaty reflects, among other things, a broad consensus on the importance of designing copyright exceptions in national law to facilitate accessibility.\n

    <\/a>The Developing Law of Fair Use<\/h1>\nWhen Congress inscribed the venerable judge-made fair use doctrine into Section 107, it codified the familiar \u201cfour factor\u201d test and also included a preamble, listing examples of uses that were eligible to be treated as fair use (including \u201ccriticism, comment, . . . teaching, scholarship, [and] research\u201d). The first decade after the 1976 Copyright Act saw generally cautious and even conservative court opinions interpreting Section 107, calling into question the real utility of the doctrine for those who make culture, or comment on it, and teach about it.\n\nSince the early 1990s, however, the case law has taken a dramatic turn. By 2003, when the US Supreme Court affirmed the strong connection between fair use and First Amendment freedom of expression in Eldred<\/em> v.<\/em> Ashcroft<\/em>, 537 U.S. 186 (2003), the doctrinal landscape had already shifted dramatically. In the intervening time, the courts had indicated that a generally critical consideration in evaluating the fair use factors is whether the use can be considered \u201ctransformative\u201d\u2014whether it \u201cadds something new, with a further purpose or different character,\u201d as the Supreme Court put it in Campbell v. Acuff-Rose Music<\/em>, 510 U.S. 569 (1994). Since then, cases have reinforced the notion that for a use to be considered \u201ctransformative,\u201d it need not\u2014 as, in fact, it usually does not\u2014entail a literal modification or revision of the original material. Instead, it is crucial that it has put that material in a new context where it performs a new function \u2013 an obvious example being the reproduction of a text or image to illustrate the argument of a chapter in a textbook. The opposite of a transformative use is a substitutional one\u2014a use that merely offers consumers a copy, or a portion, or a version, of the work itself. Understanding the transformative use concept makes fair use much easier to understand and predict.\n\nWhere a use is transformative, the first statutory factor (looking to \u201cpurpose and character\u201d) will weigh strongly in favor of fair use \u2013 even if the new use is \u201ccommercial\u201d in character. The second factor (which implicates the nature of the work used) tends to favor transformative uses as well. This factor functions to provide certain imaginative works extra protection from unfair exploitation; however, this concern loses much of its force when they are used for new purposes \u2013 especially expository or educational ones. Moreover, where the third factor is concerned, courts will measure the appropriateness of the amount of copyrighted material used against the transformative purpose of that use; thus, in appropriate circumstances, use of an entire work often will qualify.\n\nAnd crucially, a transformative use is likely to weigh in favor of fair use under the fourth factor directed toward the market harm suffered by the copyright holder. As increasing numbers of courts have recognized, this is because copyright owners are not entitled to control the \u201ctransformative markets\u201d for their works. This principle is exemplified by Bill<\/em> Graham Archives<\/em> v.<\/em> Dorling Kindersley<\/em> Ltd<\/em>., 448 F.3d 605 (2d Cir. 2006), which involved graphic art reproduced to illustrate a historical narrative, or the recent decision in Marano v. Metro. Museum of Art<\/em>, 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y. 2020), which involved using a photo of a musician in performance from the museum\u2019s collection to illustrate a largely unrelated essay about musical instruments that appeared on its website.[footnote]By contrast, where a use is deemed nontransformative, the market-harm test of factor four is likely to play a more important role in the analysis. Thus, for example, a textbook author\u2019s failure to license biographical summaries of historical figures found on a proprietary website could weigh against a fair use finding. Alternatively, the reproduction of an \u201corphan\u201d work that is not being actively exploited might be deemed fair on the grounds that the use didn\u2019t interfere with any meaningful market.[\/footnote]\n

    <\/a>Fair Use in a Nutshell<\/h1>\nTo sum up, individuals (like OER authors) who are contemplating the use of unlicensed copyrighted inserts would do well to follow the example of today\u2019s federal judges, who focus, in effect, on two key analytic questions that effectively collapse the four factors:\n