Here is information about the right of a "public commentator" to copy otherwise copyrighted material for the purpose of "public comment."
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 -
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Regents Guide to Understanding Copyright
Created November 13, 1997 |
This document is the result of the work completed by the University System Committee on Copyright. The guide provides illustrative examples of Fair Use and the legal background of copyright law.
The purpose of this guide is to provide faculty, employees, and students of the University System of Georgia with a basic understanding of copyright and fair use.
Permission to copy these guidelines for non-commercial educational use is freely granted.
Based upon our initial review of the Digital Millennium Copyright Act ("DMCA"), we do not believe that the act affects the guide's fair use analysis.
Part I. Principles of Fair Use
Part II. Examples Illustrating the Application of Fair Use
- Journal Article for Classroom Use
- Posting Copyrighted Article to Web Page
- Coursepacks
- Textbooks
- Textbooks for Library Reserves
- Public Domain Materials
- Showing a Videotape for Classroom Instruction
- Copying a Videotape for Classroom Instruction
- Renting a Videotape That Is in the Public Domain for Nonclassroom Use
- Renting a Videotape That Is Copyright-Protected for Nonclassroom Use
- Classroom Presentation
- Electronic Transmission or Broadcast of Classroom Presentation
- Broadcast of Classroom Presentation to Home or Office
- Videotaping of Classroom Presentation
- Broadcast of Videotaped Classroom Presentation
- Incorporation of Photographs in an Electronic Presentation (Excluding the Internet)
- Making Changes to Photographs
- Use of Copyrighted Music
- Use of Music Over Two-Way Interactive Video (GSAMS)
- Use of Music in Videotaped Classroom Presentation
- Use of Music in Broadcast of Videotaped Classroom Presentation
- Use of Music in an Electronic Presentation (Excluding the Internet)
- Use of Music as Content in a Classroom Presentation
- Use of Music in Classroom Presentations on the Internet
- Videotape of Telecourse
- Videotape of Telecourse Shown at Other Institutions
- Telecourse via the Internet
- Telecourse via Cable Television
- Remote Access of Searchable Database via the Internet
- Student Project for Distribution on the Internet
- Student Project on the Internet with Restricted Access
- Use of Commercial Videotape
- Taping On-Air Programming
- Retention of Tape of On-Air Programming
- Retention of Videotape of Copyrighted Material
- Use of a Videotape of a GSAMS Class Containing Copyrighted Material
- Rebroadcast of a Videotape of a Two-Way Interactive Video (GSAMS) Class Containing Copyrighted Material
Part III. The Legal Background: Understanding Copyright and Fair Use
A. Understanding Copyright Law
C. Fair Use and New Communications Technology
D. Fair Use Applied to Copyright as a Marketing Monopoly
- The Crucial Distinction between the Work and the Copyright and the Use of Each
- The Three Types of Copyrightable Works: Creative Works, Compilations, and Derivative Works
- The Three Kinds of Fair Use: Creative, Personal, and Educational
- The Fair Use Factors in Relation to the Type of Work and the Kind of Use
- Fair Use and the Rights of the Copyright Holder
A. The Copyright Clause of the U.S. Constitution
B. Selected Provisions of the Copyright Statute
- Sec. 101. Definitions
- Sec. 102. Subject Matter of Copyright: In General
- Sec. 103. Subject Matter of Copyright: Compilations and Derivative Works
- Sec. 105. Subject Matter of Copyright: United States Government Works
- Sec. 106. Exclusive Rights in Copyrighted Works
- Sec. 107. Limitations on Exclusive Rights: Fair Use
- Sec. 201. Ownership of Copyright
- Sec. 202. Ownership of Copyright as Distinct from Ownership of Material Object
C. Copyright Decisions of the U.S. Supreme Court
- Copyright Is a Statutory Grant, Not Common Law Property
- Ownership of Copyright Is Separate from Ownership of a Copy of the Work
- The Copyright Holder Does Not Own the Copyrighted Work
- Copyright Is a Series of Rights to Which a Work Is Subject
- Copyright Does Not Negate Property Right of Purchaser of Copy of the Work
- Personal Use of Copyrighted Work Is a Fair Use
- Copyright Law Protects the Public Domain
- Primary Function of Copyright Is to Provide Public Access
- Fair Use Is to Be Determined Individually for Each Work
- Copyright Is to Serve the Public Interest in Preference to Private Interests
Members of the Copyright Committee
The Congress shall have Power . . . To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . .
-- U.S. Constitution, art. I, sec. 8, cl. 8The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
-- Justice Sandra Day O'Connor, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991)
The most famous newspaper headline in American history may well be the Chicago Tribune's famous gaffe about the outcome of the 1948 presidential election: "Dewey defeats Truman." Some fifty years later, a staff member of the Truman Presidential Library in Missouri, while preparing a video on President Truman for library visitors, asked the newspaper for permission to use the headline in the video. The newspaper refused, presumably on the grounds that the law of copyright gave it the power to say who could use the headline and who could not. The Chicago Tribune was wrong. Copyright requires an original work of authorship and a three-word headline does not qualify.
The incident reveals the two most common errors committed in the name of copyright: a request for permission to use material when no request is needed and a denial of such requests. These errors suggest that there is a vast amount of confusion about copyright and the right to use copyrighted material. Since copyright is the grant of a limited monopoly in recorded knowledge, this confusion has large consequences for society. Indeed, there is currently an important public policy debate about copyright and fair use.
That debate, however, is about what copyright law should be, not what it currently is. The Regents Copyright Committee has concerned itself with what the law is, not what it should be. The guide will thus contribute to the policy debate only insofar as it increases an understanding of copyright law and fair use.
The purpose of this guide is to provide faculty, employees, and students of the University System of Georgia with a basic understanding of copyright and fair use. Individuals and institutions acquire copyrighted materials--books, journals, videotapes, sound recordings, etc.--and expect to use them to support educational and research activities. This is especially important today when advanced information technology offers so many ways to enhance instruction. New technology complicates the issue. A teacher may have been quite comfortable providing photocopies of a magazine article to students in one classroom, but may begin to be concerned if the students are spread across many classrooms in diverse geographic locations connected by distance learning technology.
It would be impossible to prepare a guide that exhaustively lists all possible uses of copyrighted materials and gives guidance for each situation. Instead, this guide attempts to provide a basic framework for applying copyright law and fair use. Each situation must be evaluated on a case-by-case basis. This guide should enable members of the University System community to make these evaluations.
The Constitution of the United States and the existing copyright law recognize that a balance is needed between the rights of the copyright holder and society's need to use copyrighted works to advance learning. It is valuable to our society for authors and publishers to have a market for their work, but the open exchange of ideas is also crucial to education and to an informed citizenry.
The basic thrust of the present document is that the rights assigned to copyright holders under existing law are essentially marketing rights. That is, the copyright owners have the right to sell their works, and users should not interfere with that right by diminishing the available market for a work or by selling pirated copies. However, the existing copyright law expressly provides for the "fair use" of copyrighted materials, especially for education and research. The basic rule of thumb, elaborated in the document, is that a copyrighted work can be used or copied for educational purposes so long as the use is not solely a substitute for purchasing a copy of the work.
Most users of this guide will and should focus on the first two sections--the principles for applying fair use and the illustrative examples that follow. Reading these two sections should enable readers to analyze most situations and determine if their use of a publication is fair or if it infringes on the rights of the copyright owner. The last two sections explain the positions taken in this guide and provide the supporting legal authorities for these positions.
While the present federal copyright law was passed in 1976 before the advent of so much of the technology that now pervades higher education, present copyright law can be applied in virtually all situations. The underlying doctrine that allows use of copyrighted materials for educational purposes still pertains whether a publication is print or electronic or multimedia.
This document is a good faith effort to explain copyright and fair use to our community.
How should members of the University System of Georgia community determine the fair use of copyrighted materials for teaching, scholarship, and research? The answer is found in three different bodies of law: (1) the copyright clause of the U.S. Constitution; (2) the current copyright statute; and (3) copyright decisions of the U.S. Supreme Court.
Because copyright is the statutory grant of monopoly rights in recorded knowledge to serve a public purpose--the promotion of learning--copyright law consists of an interrelated set of complex rules. On one hand, copyright gives proprietary rights to copyright holders; on the other, it grants learning rights to users in the form of the fair use doctrine. Since the law provides rights for both holders of copyright and for users of copyrighted works, and since everyone has a duty to respect the law, it follows that users have a duty to respect the rights of holders and holders have a duty to respect the rights of users. The problem is to know the limits of the respective rights, and that is the problem to which this document is directed.
Special care has been taken to ensure that the contents of this Guide accurately reflect the law. To this end, the Committee has relied upon the copyright clause of the U.S. Constitution, the copyright statute, and decisions of the U.S. Supreme Court. A complex body of law, of course, provides room for reasonable persons to disagree as to meaning and interpretation, and there will probably be those who disagree with some of the positions this document reflects. Nevertheless, the Committee is convinced that the positions taken in the guide are both sound and supported by legal authority and that members of the University System Community may safely rely on them.
A caveat to members of the University Community is appropriate. This Guide is limited to copyright and fair use and does not deal with other intellectual property issues, for example, patents. For guidance on those issues, reference should be made to the Regents Intellectual Property Policy.
PART I. PRINCIPLES
OF FAIR USE The 1976 Copyright Act grants the "fair
use" of copyrighted materials for a variety of purposes, for the creation
of new works, for educational use, and for personal use. The following
principles provide a framework for the application of educational fair use. The
goal is to enable teachers and scholars to use copyrighted materials for
teaching, scholarship, and research with respect for the rights of copyright
holders as well as their own rights. The principles are based on three
propositions: (1) the copyright statute regulates the copyright monopoly it
grants in order to maintain an appropriate balance between the rights of
copyright holders and the rights of users; (2) the copyright monopoly is
essentially for marketing a work and does not extend to the copy of a work that
the copyright owner has sold; and (3) the ultimate test for educational fair use
is whether the copying is done for sound pedagogical reasons and not simply to
avoid purchasing a work. These ideas, and the fair use principles
stated below, are grounded in the discussion that follows in Part III and in the
legal authorities discussed in Part IV. The principles of fair use are derived
from the Fair Use Statute,
17 U.S.C. § 107, which is printed in full in Part IV.
PART II. EXAMPLES ILLUSTRATING THE
APPLICATION OF FAIR USE The following examples are intended to aid
members of the University System Community to evaluate fair use at three levels:
creative, educational, and personal. They deal with situations involving print,
multimedia, distance learning, and electronic reserves. The examples are
illustrative, not exhaustive. These examples apply to non-profit educational
uses only. SCENARIO A: A professor of English is writing a book comparing the
work of three women poets, all of whose poems are copyrighted. QUESTION: May the professor quote the poems in her book? ANSWER: Yes. This is one of the traditional types of fair use, that is,
creative fair use. Two other examples of fair use are use for comment and
criticism. SCENARIO B: A professor of psychology desires to edit and publish
a collection of unpublished letters in the library archives. QUESTION: Is this a fair use? ANSWER: The answer to this scenario requires further information. Has the
copyright protection expired? Are the letters subject to any agreement the
library made with the donor? Can the author or authors of the letters be
located? Is the library agreeable to publication? This is the type of
problem that requires a detailed legal and factual analysis. One should
consult the institution's office of legal affairs for advice. 3. Journal Article for Personal Use SCENARIO C: A professor wishes to make a copy of an article
from a copyrighted periodical for her files to use later. QUESTION: Is this a fair use? ANSWER: Yes. This is a classic example of personal fair use so long as
the professor uses the article for her personal files and reference. See
SCENARIO E. SCENARIO D: A library has a book that is out of print and
unavailable. The book is an important one in the professor's field that she
needs for her research. QUESTION a: May the professor copy the book for her files? ANSWER: Yes. This is another example of personal use. If one engages in
the fair use analysis, one finds that: (1) the purpose of the use is
educational versus commercial; (2) the professor is using the book, a
creative work, for research purposes; (3) copying the entire book would
normally exceed the bounds of fair use, however, since the book is out of
print and no longer available from any other source, the copying is
acceptable; (4) finally, the copying will have no impact on the market for
the book because the book is no longer available from any other source. QUESTION b: Using the same facts as explained in SCENARIO D, could the
professor copy the book and place the book on reserve in the library? Could
the professor scan the book into her computer and place the book onto the
World Wide Web? ANSWER: If the professor placed the book on reserve in the library, the
use would be considered a fair use. However, if the professor placed the
book on the Web, then the use is not a fair use. Placement on the Web allows
unlimited access to the book. This would affect the copyright holder's
public distribution of the book. See SCENARIO R, SCENARIO T, and SCENARIO U. 1. Journal Article for Classroom Use SCENARIO E: A professor copies one article from a periodical for
distribution to the class. QUESTION: Is this fair use? ANSWER: Yes. Distribution of multiple copies for classroom use is a fair
use. 2. Posting Copyrighted Article to Web Page SCENARIO F: A professor has posted his class notes on a Web page
available to the public. He wants to scan an article from a copyrighted
journal and add it to his Web page. QUESTION: Is this a fair use? ANSWER: No. If access is not limited, then this use is probably not a
fair use. No exclusively educational purpose can be guaranteed by putting
the article on a Webpage that is available to the general public. Such
conduct would arguably violate the copyright holder's right of public
distribution. However, if access to his Web page is restricted, then the use
is a fair use, since he is only posting one article from a journal. SCENARIO G: A professor copies excerpts of documents,
including copyrighted text books and journals, from various sources. The
professor plans to distribute the materials to his class as a coursepack. QUESTION a: Is the preparation of a coursepack for students in the class
a fair use? ANSWER: One must do the fair use analysis. If the use of each excerpt
complies with the fair use criteria, then use of the coursepack is a fair
use. The inclusion of the excerpts in a coursepack will not change a fair
use to an infringing use. QUESTION b: Same facts as SCENARIO G, except the professor prepares a
digital or electronic coursepack. Is the preparation of an electronic
coursepack for students in the class a fair use? ANSWER: If the professor anticipates distributing the coursepack via the
World Wide Web, e-mail or compact disk, then a fair use analysis is
required. SCENARIO H: A professor wishes to use a textbook he considers to
be too expensive. He makes copies of the book for the class. QUESTION: Is this a fair use? ANSWER: No. Although the use is educational, the professor is using the
entire work, and by providing copies of the entire book to his students, he
has affected the market. This conduct clearly interferes with the marketing
monopoly of the copyright owner. The professor should place a copy on
reserve or require the students to purchase the book. See following
examples. QUESTION A: If in SCENARIO H the professor decided to scan the entire
book onto his webpage, is this a fair use? ANSWER: NO. This conduct clearly interferes with copyright owner's
Marketing monopoly. Moreover, the professor is using the entire work. QUESTION B: same facts as in QUESTION A of SCENARIO H, Except the
professor Restricts access to his web page to the students in his class by
providing a Password or pin. Is this fair use? ANSWER: Limiting access to the students in his class does not convert an
infringing use into a fair use. The professor must conduct a fair use
analysis. The use of the entire book violates the third fair use factor. The
use of a pin to provide limited access only ameliorates the fourth marketing
factor. The professor is basically giving away the copyrighted book rather
than requiring students to buy it. 5. Textbooks for Library Reserves QUESTION: If in SCENARIO H the professor decides to make three copies of
the book and place them on reserve in the library for the class, is this a
fair use? ANSWER: No. This conduct still interferes with the marketing monopoly of
the copyright owner. The professor may place a copy of the textbook, not the
copies, on reserve. SCENARIO I: A teacher copies a Shakespearian play from a
copyrighted anthology. QUESTION: Is this a fair use? ANSWER: The play is in the public domain and not subject to copyright
protection and, therefore, one need not do a fair use analysis. Other public
domain materials include U.S. government documents, works whose copyright
has expired and unsealed court records. There are other public domain
materials; for a determination consult legal affairs. 1. Showing a Videotape for Classroom Instruction SCENARIO J: A teacher wishes to show a copyrighted motion picture
to her class for instructional purposes. QUESTION: Is this a fair use? ANSWER: Yes. It is fair use since it is for classroom instruction and no
admission fee is charged. Tuition and course fees do not constitute
admission fees. 2. Copying a Videotape for Classroom Instruction SCENARIO K: A teacher makes a copy of the videotape described in
SCENARIO J for a colleague to show in her class at the same time. ANSWER: No. This is not a fair use. The teacher may lend her personal
copy of the videotape to a colleague for this purpose. 3. Renting a Videotape That Is in the Public
Domain for Nonclassroom Use SCENARIO L: A professor wishes to raise funds for a
scholarship. She rents a videocassette of a motion picture on which the
copyrighthas expired and charges admission fees. QUESTION: May she do so? ANSWER: Yes. The copyright of the motion picture has expired, which
places the motion picture in the public domain. 4. Renting a Videotape That Is Copyright-Protected
for Nonclassroom Use SCENARIO M: The facts are the same as those in SCENARIO L except
that the movie is protected by copyright. QUESTION: Is this a fair use? ANSWER: No. This is not a fair use because it infringes the copyright
owner's right to market the work. SCENARIO N: A teacher or student prepares and gives a presentation
that displays photographs. Permission was not obtained to use the
photographs. QUESTION: Can the photographs be included in the initial presentation, if
it is in a traditional classroom? ANSWER: Yes. The copyright fair use provision explicitly provides for
classroom use of copyrighted material. Instructors and students may perform
and display their own educational projects or presentations for instruction. 2. Electronic Transmission or Broadcast of
Classroom Presentation QUESTION: What if the presentation incorporating the photographs
discussed in SCENARIO N is broadcast to a distant classroom? ANSWER: Yes. This use would be considered fair use, as long as the
presentation is broadcast for remote instruction. 3. Broadcast of Classroom Presentation to Home or
Office QUESTION: What if the presentation discussed in SCENARIO N is broadcast
to students at their homes or offices? Would such use be a fair use? ANSWER: Yes. This use would be considered fair use if the individuals are
enrolled in a course and viewing the presentation for purposes of criticism,
comment, teaching or instruction, scholarship, or research. 4. Videotaping of Classroom Presentation QUESTION: What if the teacher's or student's presentation explained in
SCENARIO N is videotaped? Would such use be a fair use? ANSWER: Yes. This use would be considered fair use, if the videotape is
used for educational purposes such as student review or if the videotape is
for instruction. 5. Broadcast of Videotaped Classroom Presentation QUESTION: What if the SCENARIO N presentation incorporating the
photographs is videotaped and rebroadcast? Is this a fair use? ANSWER: Yes. The use of the photographs is fair use as long as the
presentation is videotaped and rebroadcast only for instruction. 6. Incorporation of Photographs in an Electronic
Presentation (Excluding the Internet) QUESTION: What if the SCENARIO N presentation is included in an
electronic presentation such as Microsoft's Power Point? ANSWER: Yes. This should be considered fair use as long as the electronic
presentation is for educational or instructional use. 7. Making Changes to Photographs QUESTION: What if the student or teacher were to change the attributes of
the pictures discussed in SCENARIO N? ANSWER: Yes. This would be considered fair use for education, comment,
criticism, or parody. One must inform the audience that changes were made to
the photographer's copyrighted work. SCENARIO O: A teacher or student creates a presentation and
incorporates copyrighted music into the background. Assume that permission
was not obtained to use the music for the presentation. QUESTION: Can the music be included in the teacher's or student's initial
presentation? 9. Use of Music Over Two-Way Interactive Video (GSAMS) SCENARIO P: Same facts as SCENARIO O. The presentation is
broadcast to a distant classroom using two-way interactive video (GSAMS). QUESTION: Is this a fair use? ANSWER: Yes. The use of interactive video for educational instruction is
considered a fair use. 10. Use of Music in Videotaped Classroom
Presentation QUESTION: What if the teacher's or student's presentation described in
SCENARIO O is videotaped? Is this a fair use? ANSWER: Yes. This is fair use if instruction is occurring. 11. Use of Music in Broadcast of Videotaped
Classroom Presentation QUESTION: What if the SCENARIO O presentation is videotaped and
rebroadcast? Would this be a fair use? ANSWER: The answer is not clear. If instruction is occurring and there
are no admission charges to the rebroadcast, the presumption is that it may
be fair use. Tuition and course fees do not constitute admission fees. 12. Use of Music in an Electronic Presentation
(Excluding the Internet) QUESTION: What if the SCENARIO O presentation is included in an
electronic presentation (excluding the Internet)? Would this use be an
appropriate fair use? ANSWER: Yes. This is fair use if instruction is occurring. 13. Use of Music as Content in a Classroom
Presentation SCENARIO Q: A professor teaches an opera course, and the professor
creates a presentation. The presentation contains the works of ten
contemporary artists and is presented to a new class every semester. QUESTION: Is this a fair use? ANSWER: Yes, as long as the use of the presentation continues to be for
instruction. 14. Use of Music in Classroom Presentations on
the Internet QUESTION: The opera classroom presentation (SCENARIO Q) or the
presentation containing background music (SCENARIO O) is placed on the
Internet? Is this a fair use? SCENARIO R: Institution A creates a telecourse. The course
contains copyrighted text, video, audio, and photographs relevant to the
class. QUESTION: If Institution A did not obtain permission to use the
copyrighted materials, can Institution A show the videotape of the
telecourse to students who have signed up for a telecourse at Institution A? ANSWER: Yes. Most experts believe that showing the videotape to students
enrolled in the telecourse is a fair use. 2. Videotape of Telecourse Shown at Other
Institutions QUESTION: Assume same facts as in SCENARIO R. If Institution A did not
obtain permission to use the copyrighted materials, can students at
Institution B enroll and receive credit for the course at Institution B? ANSWER: Yes. Most experts believe that showing the videotape to students
enrolled in the telecourse is a fair use. 3. Telecourse via the Internet QUESTION: Assume same facts as in SCENARIO R. What if the telecourse is
transmitted via the Internet? ANSWER: If the telecourse is broadcast and there is open access, the
audience is no longer clearly defined. A rebroadcast over the Internet to a
global audience is probably not a fair use. A restricted broadcast of the
telecourse is a fair use. 4. Telecourse via Cable Television QUESTION: Assume same facts as in SCENARIO R. What if the delivery mode
is cable television? ANSWER: The audience is no longer clearly defined, but if the institution
is broadcasting the material over an institutionally controlled cable
channel, then the use is fair. 5. Remote Access of Searchable Database via the
Internet SCENARIO S: A faculty member at Institution C creates a
searchable database of copyrighted materials. The database is used as a part
of a distance learning course and is available on the institution's
webserver. Students enrolled in the course access the course materials from
home, work, and other areas that are not traditional classrooms. Access to
the database is controlled and available only to students enrolled in the
class. The faculty member did not obtain permission to use the copyrighted
materials. QUESTION A: Will this use of copyrighted materials from home, work, or
other areas constitute fair use? ANSWER: Yes. So long as the materials are being accessed for educational
instruction, the professor used a limited amount of the Copyrighted
materials, the professor analyzed the nature of each item Included in the
database and access remains controlled. Also, access is limited. If there
were open access it would be an infringement. QUESTION B: What if the copyrighted materials in SCENARIO S are musical
works or dramatic works? Is the use a fair use? ANSWER: Yes. So long as the materials are being accessed for educational
instruction, the professor used a limited amount of the Copyrighted
materials, the professor analyzed the nature of each item Included in the
database and access remains controlled. 6. Student Project for Distribution on the
Internet SCENARIO T: A student is taking a distance learning class in which
the instructor has required that a particular assignment be created for
unlimited distribution on the Web. QUESTION: If a student includes an audio segment of copyrighted music
(video, news broadcast, non-dramatic literary work), is this a fair use? ANSWER: No. Since the teacher specifically stated that the project is
being created for distribution over the Web, this is not a fair use of any
of the listed copyrighted materials and permission should be obtained. See
SCENARIO U. 7. Student Project on the Internet with Restricted
Access SCENARIO U: Same facts as SCENARIO T, however, access to each
student's Web page will be restricted to other students in the class. QUESTION: Is this a fair use? ANSWER: Yes. This should be considered fair use. 8. Use of Commercial Videotape SCENARIO U: An instruction is teaching a class delivered on cable
television or via two-way interactive video (GSAMS), and she uses a
commercial videotape (either in its entirely or a portion), which is sold
for instructional purposes, during a class to illustrate a concept covered
in the discussion. QUESTION a: In this a fair use? ANSWER: Yes. She is using a commercial video for its intended purpose.
Moreover, it is being used to illustrate a concept connected with the class
discussion. QUESTION b: Same facts as SCENARIO V, but the class is distributed over
the Internet. Is this a fair use? ANSWER: This is a fair use only if access over the Internet is
restricted. QUESTION c: Same facts as SCENARIO V, but the videotape is not
"educational" in orientation. Is this fair use? ANSWER: Distribution over two-way interactive video or cable television
controlled by the institution would be fair use, as would restricted
distribution over the Internet. Unrestricted distribution over the Internet
is not a fair use. SCENARIO W: A faculty member records a segment from a
television program. The segment will be shown in a GSAMS class the following
day. The remote sites will record the class in the event of technical
difficulties. QUESTION: Is the showing of the recording considered fair use? ANSWER: Yes. 10. Retention of Tape of On-Air Programming QUESTION: Assume there are technical difficulties in SCENARIO W and the
remote sites replay the tape containing the program segment. Is that a fair
use? ANSWER: Yes. The use is for instructional purposes. 11. Retention of Videotape of Copyrighted
Material SCENARIO X: Institution E records a two-way interactive video (GSAMS)
class that contains copyrighted works. The tapes are kept for the entire
quarter to serve as review for students who may have missed a class or as
backup in the event of technical difficulties. At the end of the term, the
tapes are erased. QUESTION: Is this fair use? ANSWER: Yes. 12. Use of a Videotape of a GSAMS Class
Containing Copyrighted Material QUESTION: What if the professor who conducted the class in SCENARIO X
decides to show the tape to her continuing education class (or to a
community group)? Is this a fair use? ANSWER: Yes, showing the tapes to her continuing education class is fair
use if she is using the material for educational purposes and no admission
fee is charged. Showing the tape to a community group may or may not be a
fair use. The fact that the user of the tapes is a professor does not make
the showing of the tape to a community group an educational use. One would
need to conduct a fair use analysis. 13. Rebroadcast of a Videotape of a Two-Way
Interactive Video (GSAMS) Class Containing Copyrighted Material SCENARIO Y: Institution E records a two-way interactive video
class that contains copyrighted text, video, audio, and photographs that are
relevant to the class. Institution E rebroadcasts the videotape to a class
at Institution F. QUESTION: Is this a fair use? ANSWER: Yes. It is fair use since instruction is occurring. 1. Placing a Book Chapter on the Library's
Electronic Reserves SCENARIO Z: A professor wants to add a book chapter to the
library's electronic reserve system. QUESTION: Is this a fair use? ANSWER: Yes. The chapter may be added if access to the system is limited
to students enrolled in the class. 2. Retention of Book Chapters on Electronic
Reserve SCENARIO AA : The professor in SCENARIO Z will be teaching the
same course for three successive terms. QUESTION: Is leaving a book chapter on the electronic reserve system for
this period of time a fair use? ANSWER: Yes. The use is fair if access is limited to students and the
work is out of print and not readily available. However, if the book is
currently in print, then a fair use analysis using the four fair use factors
is required. PART III. THE LEGAL BACKGROUND: UNDERSTANDING COPYRIGHT AND FAIR USE The following discussion, based on the
copyright clause of the U.S. Constitution, the copyright statute, and decisions
of the U.S. Supreme Court, provides the legal background necessary for
understanding copyright and fair use. The discussion should be read in light of
the fact that copyright is a highly regulated statutory grant, a limited
monopoly to serve the public interest in preference to private interests. A. Understanding Copyright Law A proper understanding of copyright law begins
with the copyright clause of the U.S. constitution, the source of Congress'
authority to enact copyright statutes. Contained in the intellectual property
clause (which also contains the patent clause), it reads: "The Congress
shall have Power . . . To promote the Progress of Science . . . by securing for
limited Times to Authors . . . the exclusive Right to their . . .
Writings." As a careful reading of this language shows, the clause limits
the power it grants to the purpose for which the power is granted. That purpose
is to promote science, which means knowledge or learning in the
eighteenth-century usage of the word. Thus, it authorizes Congress to grant
copyright only to authors, only for their writings, and only for limited times.
The national legislature could not, for example, constitutionally enact a
statute providing for a perpetual copyright. The key to understanding the limits on
Congress' power to enact copyright legislation is the meaning of the
"exclusive Right" that Congress can grant. In 1789, the meaning of
this phrase was clear: it was the right to publish the work. Today there are
ways other than publishing to market a work. Thus, the "exclusive
Right" today can be properly read as meaning the exclusive right of authors
to market their works, which retains the original function of the phrase. The
purpose of copyright--to promote learning--remains the same. Originality--in the words of the copyright
statute, "an original work of authorship"--is a constitutional
condition for copyright. This condition is important because it means that
copyright law divides all writings into two categories: those that are
copyrightable and those that are not. Material that is not copyrightable is called
public domain material. Examples are: (1) facts and ideas (Sec. 102(b)); (2)
works of the U.S. Government (Sec. 105); (3) all material that is not original
with the author claiming copyright (Sec. 103); and (4) works upon which the
copyright has expired. Copyright law thus has a major role in preserving the
public domain. While the purpose of copyright is to promote
learning, there are two obvious points sometimes overlooked: (1) the amount of
public domain material exceeds the amount of copyrighted material by far; and
(2) the public domain is as necessary to the promotion of learning as copyright.
Consequently, copyright's role in preserving the public domain is as important
as protecting the new writings of authors. Preserving the public domain is specified by
the copyright clause of the Constitution, which requires a new writing
and a limited term for copyright, and by the copyright statute, which
conforms to these limitations. Since copyright requires a new work, it cannot be
used to capture old works from the public domain; since copyright is limited to
a definite term, all copyrighted works eventually go into the public domain.
Thus two of the constitutional roles of copyright law are to preserve and to
enhance the public domain. Unlike the copyright clause, the current
copyright statute is long and complex, but the pattern of Chapter 1 of the
statute, the most important, is simple. After defining key terms in section
101, that chapter: (1) states the conditions for copyright; (2) excludes
copyright for certain types of material and works; (3) defines the types of
copyrightable works; (4) grants rights to the copyright holder in section
106; and (5) limits those rights in sections 107-120. The statutory condition for copyright,
consistent with the Constitution, is the creation of an original work of
authorship fixed in a tangible medium of expression (Sec.
102(a)). The statute, however, puts ideas (Sec. 102(b)) and works of the
U.S. Government (Sec. 105)
in the public domain by excluding them from copyright protection. The
pattern--conditions, defined rights, and limitations on those rights--is that of
a highly regulated statutory grant. One of the most subtle aspects of the
copyright statute is that it provides copyright for works that contain public
domain material and are original only in part. To make this copyright
constitutional, Congress excluded public domain material (and other material
unoriginal to the author) from copyright protection even though it is contained
within a copyrighted work. This explains why there are three kinds of copyrights
with varying degrees of protection: (1) creative works (which consist entirely
of original material like novels, dramas, and poems) are entitled to plenary
protection (Sec. 102(a)); (2) compilations (collections of independently
copyrightable works or data, for example, an anthology of short stories or
entries in a library catalog) (Sec.
103), entitled to only limited protection; and (3) derivative works (works
based on other works, such as a motion picture based on a novel) (Sec. 103),
also entitled to only limited protection. The scope of the copyright monopoly is thus
commensurate with the amount of originality necessary to create each type of
protected work. This follows from the fact that the originality of a creative
work is in composing it, the originality of a compilation is in arranging
pre-existing material, and of a derivative work in transforming another work. In
short, Congress was careful to limit the scope of copyright protection to the
original material of the author claiming copyright. It should be noted that a
gathering of independently copyrightable works is a compilation that is called a
collective work, and that the individual works themselves may be entitled to
plenary copyright protection independently of the partial protection provided by
the compilation copyright. In section
106, Congress grants the copyright holder six rights: (1) to reproduce the
work in copies; (2) to prepare derivative works; (3) to distribute copies of the
work to the public; (4) to perform the work publicly; (5) to display the work
publicly; and (6) to perform audio digital recordings publicly (added by
amendment some twenty years after the statute was enacted). These rights are said to be exclusive,
but--consistent with the regulatory scheme of the statute--they are subject to
limitations contained in the fourteen sections following section 106. These
limitations explain the Supreme Court's statement that "the copyright
holder's dominion is subject to precisely defined limits."(1)
The copyright holder, for example, has the exclusive right to market a work by
distributing copies publicly (Sec. 106(3)). And the copyright holder has
the exclusive right to market the public performance of a work, but not its
private use. One can sing the copyrighted song in the shower, but not on the
radio (Sec.106(4)). Similarly, owners control the market for public display of a
copyrighted painting but not its private display in one's home (Sec. 106(5)). The copyright statute is to be interpreted in
light not only of the copyright clause, but also of the copyright decisions of
the U.S. Supreme Court. Indeed, it is primarily in reference to these decisions
that a very important, but subtle, point becomes clear. The subject of the
copyright statute is proprietary rights in the copyright, not in the work
itself.(2) Thus, the copyright statute provides that the
copyright holder has certain rights to which the work is subject, and it is only
these rights that can be transferred or infringed. The U.S. Supreme Court dealt with this issue
in a case near the beginning of the twentieth century, when a copyright holder
had sued a retailer claiming that the retailer had to charge the price that the
publisher set for the book. The Court rejected the copyright holder's claim of a
right to control proprietary rights in a book (technically a copy of the
copyrighted work) that it had sold. The result was what in legal terms is called
the "first sale" doctrine.(3) That is, the Court
held that the copyright holder's marketing monopoly as to a particular book ends
with the first sale of that book. The monopoly, of course, ends only for that
particular copy and does not otherwise affect the copyright. The first sale doctrine means that the
purchaser of a book can subsequently do with it as he or she pleases, give it
away, resell it, or burn it. This right is based on the distinction between the
physical object in which the work is contained and the copyright of the work.
The purchaser of the book owns the book, the copyright holder owns the
copyright. It follows, then, that there is a distinction between the use of the
work and the use of the copyright of the work. Thus, the purchaser of a copy of
a work can use that copy as he or she wishes, but may not use the copyright
except as a matter of fair use or with permission. The copyright statute codifies the distinction
between the work and the copyright in section 202. Thus, the transfer of a book
containing the work is not a transfer of the copyright (or any of the rights of
copyright) of the work; and the transfer of the copyright is not a transfer of
any rights in a book in which the work is contained (Sec. 202). To summarize, copyright law means that: (1)
copyright is a monopoly that provides authors the right to sell copies of their
work; (2) the monopoly is regulated in the public interest; (3) the monopoly of
a particular copy ends when that copy is sold; and (4) a user is free thereafter
to make use of the work contained in that copy but not to make use of the
copyright of that work. The most important of the statutory
limitations on copyright is fair use, which applies to all copyrighted works and
all uses granted in section 106. The fair use statute is section
107 of the copyright statute, which is printed in full in Part IV. It
provides that "the fair use of a copyrighted work, including such use by
reproduction in copies," is not an infringement of copyright. As exemplars
of fair use, it lists "criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research"
and provides four non-exclusive factors to be used in determining whether a use
is fair. They are: (1) the purpose of the use, including whether the use is a
commercial use or for non-profit educational purposes; (2) the nature of the
work; (3) the amount used; and (4) the effect on the marketing of the work.
These factors are discussed below. The purpose of fair use is twofold: to protect
the copyright holder's market monopoly while preventing the market monopoly from
being used to inhibit (rather than promote) learning. But these goals are often
confused when the use of a work involves copying. Thus, it is helpful to compare
fair use conduct with infringing conduct to avoid the confusion. The copyright statute defines infringement as
the violation of "any of the exclusive rights of the copyright owner,"(4)
which includes the right to reproduce the work in copies. One who copies the
work without permission, therefore, would appear to have infringed the
copyright. But the fair use statute says, "The fair use of a work, including
such use by reproduction in copies . . . is not an infringement of
copyright" (emphasis added). This means that the same type of
conduct--reproduction of a work in copies--may be a fair use in one case or an
infringement in another and this is the major reason for confusion as to the
scope of the fair use right. The primary source of the confusion is the
language in section 106(1), which grants the copyright owner the
"exclusive" right to reproduce the work in copies subject to
limitations. A right subject to limitations is not totally exclusive, it is
merely a right subject to limitations. Although these limitations include the
right of fair use, which, in the language of the statute, includes use by
copying, copyright holders prefer to read the statute otherwise. See, for
example, copyright notices in many books that purport to deny anyone the right
to copy any portion of the book without the consent of the copyright holder. The
plain meaning of the statute, however, precludes this interpretation, and it is
clear that the copyright holder's right to copy is not absolute. Since a truly absolute right to reproduce in
copies would create an absolute monopoly to market a work, there are four
persuasive items of evidence (apart from the language in section 107) indicating
that the copyright holder's right to copy is not absolute. The first is that the
limitations on the copyright holder's right to copy are limitations on the
marketing right. But the marketing right is not absolute because of the first
sale doctrine, which says that the copyright owner's marketing monopoly is
exhausted with the first sale and others can then sell the copy. To say that the
reproduction of the work in copies is an absolute right is inconsistent with the
fact that the right to distribute the copies is limited to the right to
distribute them to the public. The second item of evidence is based on the
many rulings of the U.S. Supreme Court that copyright is intended primarily to
benefit the public's rather than the copyright holders' interest, which cannot
be so if the right to copy is absolute. The third item of evidence is the specific
ruling of the Supreme Court--made in response to claims that the making of one
copy of a copyrighted motion picture off-the-air (under the current copyright
statute) was infringement--that copyright has never granted to the copyright
holder absolute rights, which clearly qualifies all "exclusive"
rights of the copyright The fourth item of evidence is the Supreme
Court's ruling that there is a constitutional right for a user to copy
uncopyrightable material from a copyrighted work, a right that could not be
exercised if the copyright owner's right to copy were absolute.(6) C. Fair Use and New Communications Technology The application of new communications
technology created by computers developed after Congress enacted the 1976
Copyright Act. Consequently, application of fair use to the transmission of
material by computer, e.g. on the Internet, merits special mention. Originally, fair use was a judicial doctrine
that one author could make fair use of another author's work in creating his or
her own new work. If the amount used was fair, the method or scope of
distribution made no difference. If, for example, Author X made a fair use of
the work of Author Y, the fact that Author X's book sold a million copies did
not divest the material of its fair use status. Today, fair use is a statutory right that
applies to all copyrighted works and all rights of the copyright holder, and
whether a use is fair is to be determined by applying the four factors listed in
the statute. Since the method of distribution is not one of the statutory
factors, it follows that the distribution of material by electronic rather than
print media is not the decisive issue. The important point is that if the amount
used does not unlawfully interfere with the copyright holder's marketing
monopoly, it is a fair use. D. Fair Use Applied to Copyright as a
Marketing Monopoly In view of the regulatory nature of copyright
as manifested in the marketing monopoly limitation, to apply the fair use
statute it is useful to begin with three basic propositions: (1) there is a
distinction between the work and the copyright and thus between the use of the
work and the use of the copyright; (2) there are different kinds of copyrighted
works and of fair use; and (3) the application of fair use depends upon the kind
of work being used and the kind of use one is making of the work. The end result
is that fair use must be determined on a case-by-case (or work-by-work) basis.(7) 1. The Crucial Distinction between the Work and
the Copyright--and the Use of Each The ultimate issue in copyright law is the
location of the appropriate line of demarcation between the marketing rights of
copyright holders and the fair use rights of users of copyrighted material. The
ability to locate this line depends, in part at least, upon understanding that
the work itself is separate and distinct from the copyright of the work, a point
proved by the fact that works continue to exist even after their copyrights have
expired and the works have passed into the public domain. The U.S. Supreme Court
made this distinction clear as long ago as 1852. "[T]he property in the
copy-right is regarded as a different and distinct right, wholly detached from
the manuscript, or any other physical existence, and will not pass with the
manuscript unless included by express words in the transfer."(8)
The continued relevance of this holding is demonstrated by the fact that
Congress codified it in section
202 of the current copyright statute, which reads in part: "Ownership
of a copyright . . . is distinct from ownership of any material object in which
the work is embodied." There are three components of a copyrighted
work: the work itself; the original fixation of the work; and copies of the
original copy (the fixation) made for the market. Since copyright is a series of
rights to which a given work is subject, copyright does not give the copyright
holder (even the author) ownership of the work, only the ownership of rights.
One who exercises a right of the copyright holder uses the copyright; one who
does not uses only the work (or the copy of the work). This distinction is what
makes so important the definition of the copyright owner's right to copy as only
the right to copy for the purpose of marketing the copies made. One who copies--or makes another use of--a
work for a non-market purpose (such as teaching, scholarship, or research) uses
the work; one who copies--or makes another use of--a work for the market uses
the copyright. The point is that a purchaser pays for the use of the work when
he or she buys a copy of it. The distinction between the work and the copyright
thus enables one to distinguish the use of the work, which does not interfere
with the owner's marketing right, and the use of the copyright, which does.
Recognizing that a use of the work never involves a use of the copyright, but a
use of the copyright always involves a use of the work helps avoid confusion. 2. The Three Types of Copyrightable Works:
Creative Works, Compilations, and Derivative Works The three kinds of copyrighted works are: (1)
a creative work (Sec. 102(a));
(2) a compilation (Sec. 103); and (3) a derivative work (Sec. 103). Only
original portions of these works are protected by copyright, and since fair use
is necessary only when using copyrighted material, it follows that the
application of fair use criteria will differ for different type works. A novel
will contain more original material than a compilation. 3. The Three Kinds of Fair Use: Creative,
Personal, and Educational There are also three kinds of fair use: (1)
creative fair use; (2) personal fair use; and (3) educational fair use. Creative
fair use involves the use of another work in creating one's own work; personal
use involves the use of a copyrighted work for learning or entertainment; and
educational fair use involves the use of copyrighted works for teaching,
scholarship, or research. As a general proposition, creative fair use involves a
use of the copyright; personal and educational fair use involve only a use of
the work, as discussed below. a) Creative Fair Use: Authors Using Other
Copyrighted Works to Create a New Work Creative fair use is use by one author of
another author's work in creating his or her own original work. It is the
earliest--and during the nineteenth century was the only--form of fair use.
Thus, in his nineteenth-century classic on copyright, Easton S. Drone said: It is a recognized principle that every author, compiler or publisher may
make use of a rival or other publication. The recognition of this doctrine
is essential to the growth of knowledge; as it would obviously be a
hindrance to learning if every work were a sealed book to all subsequent
authors. The law, therefore, wisely allows a 'fair use' to be made of every
copyrighted production. . . .(9) The use of another's work to create one's own
often means also the use of the copyright of that work, since it may interfere
with the marketing right of the copyright holder. An author who abridges another
author's work, for instance, makes use of the work that is so extensive it is
also a use of the copyright. It is when the use of a work extends to the use of
the copyright in creating a new work that creative fair use comes into play. The
essential question is always how much of an intrusion on the copyright of the
original work will be fair. The three factors to aid in this determination
were named in the 1841 case, Folsom v. Marsh, that created the
right of fair use, when the court said that one must "look to the nature
and objects of the selections made, the quantity and value of the materials
used, and the degree in which the use may prejudice the sale, or diminish the
profits, or supersede the objects, of the original work."(10)
Thus the factors were: (1) the nature of the work, (2) the amount used, and (3)
the effect on the market--the same factors, except for purpose of the use, now
in section 107. (The purpose of the use, the first factor listed in section 107,
was not listed in the Folsom case because that factor implies other kinds
of fair use--personal and educational fair use--that were neither necessary nor
recognized until the 1976 Copyright Act.) b) Personal Fair Use: Use of Copyrighted Works
for One's Own Learning or Enjoyment Personal fair use is a use of the work by an
individual for his or her learning or entertainment. For example, copying for
scholarship and research are personal uses permitted by section 107, as is
taping a copyrighted motion picture off-the-air for later viewing--a personal
fair use permitted by ruling of the U.S. Supreme Court.(11)
This is consistent with the traditional view of one's right to use a copy of a
work, e.g. a book, as stated by Justice Brewer of the U.S. Supreme Court when he
said: Most authorities now treat personal use as
being under the fair use umbrella. But since personal fair use is a use of the
work--not the copyright--it is always a protected use. c) Educational Fair Use: Use of Copyrighted Works
for Teaching or for Scholarship or Research Educational fair use, as the statute makes clear, is a use of the work for
teaching, scholarship, or research. There is some overlap between creative use,
educational use, and personal use since copying is necessary for all three. This
may be one reason that Congress in the 1976 Copyright Act took special pains to
protect educational fair use, as shown by four provisions of the statute: (1)
the use of works for "teaching (including multiple copies for classroom
use)" as an exemplar of fair use (Sec. 107); (2) the distinction between
commercial and nonprofit educational use (Sec. 107(1)), a superfluous
distinction unless it means special protection for educational use; (3) the
provision that fair use overrides the limitations on library photocopying (Sec.
108(f)(4)); and (4) the good-faith defense for employees of nonprofit
educational institutions, libraries, and archives (Sec. 504(c)(2)). It should be noted that two cases have dealt
indirectly with educational fair use, Basic Books, Inc. v. Kinko's Graphic
Corp.(13) and Princeton University Press v. Michigan
Document Services.(14) Both of these cases were
infringement actions against a commercial copyshop that copied coursepack
materials for classroom use at the request of professors. Both courts held that
the commercial copyshops were not entitled to the right of fair use, but it is
worthy of note that the Princeton University Press court did not decide
whether "it would be fair use for the students or professors to make their
own copies," because "the copying complained of here was performed on
a profit-making basis by a commercial enterprise."(15)
It is also worthy of note that there were three very strong dissents in that
case, one of which noted that "[t]here is no legal precedent and no legal
history that supports our Court's reading of this phrase ["multiple copies
for classroom use"] in a way that outlaws the widespread practice of
copying for classroom use by teachers and students," and that the Supreme
Court, the only court whose rulings apply nationwide, has not ruled on the
issue.(16) Kinko's was an order of the U.S.
District Court of the Southern District of New York and such orders are binding
only in that district. Moreover, the Attorney General of the State of Georgia
has issued an unofficial opinion contrary to Kinko's (and Princeton
University Press) (Attorney General's Opinion No. U96-4 [Feb. 15, 1996]).
The Opinion takes the position that the plain language of the statute
("multiple copies for classroom use" is an exemplar of fair use) means
what it says. A third case to be noted is American
Geophysical Union v. Texaco,(17) which dealt with
photocopying by a for-profit corporation for research purposes (the copies were
made by a scientist in the research lab). The court held that the for-profit
corporation was not entitled to the right of fair use, but said "our
opinion does not decide the case that would arise if Chickering [the copier]
were a professor or an independent scientist engaged in copying and creating
files for independent research."(18) 4. The Fair Use Factors in Relation to the Type of
Work and the Kind of Use The fair use statute lists four non-exclusive
factors--purpose of the use, nature of the work, amount used, and market
effect--in determining whether a use is fair (that is, whether the use
improperly intrudes upon the market monopoly of the copyright holder). The statute, however, does not provide any
guidance for using the factors, except for distinguishing commercial and
non-profit educational use in factor one. Presumably, this is because fair use
is a fact-intensive determination and all the factors are to be applied to each
work alleged to have been infringed on a work-by-work basis. Thus, the Supreme
Court has ruled that, contrary to lower court rulings, the fourth factor is no
more important than the other three, and that all the factors are to be
considered together. The important point is that the purpose of the
factors is to protect the marketing monopoly of the copyright owner against
unfair intrusion and both the type of work and the kind of use involved must be
related to that purpose. Further, the factors are not exclusive, and the
relevance of the additional factors will vary according to the type of work and
the kind of use intended. Although fair use is applied most often when
the copyrighted work is copied, the fair use statute does not limit fair use to
the reproduction right or to any one right of the copyright holder. Since fair
use applies to all the copyright holder's rights, the preparation of a
derivative work (for example, a parody) and the public distribution, public
performance, or public display of a work (as well as copying) can be a fair use. Generally, however, the key element in determining whether a use is fair or
not is the amount of the work used. If the amount copied is so much that it
violates the copyright holder's right to reproduce the work in copies, it is
infringing (and the same infringer can also be guilty of infringing by
distributing, performing, or displaying the work publicly). But if the amount
copied conforms to fair use criteria, the fact that the portion copied is
distributed, performed, or displayed publicly does not deprive the copied
material of its fair use status. For example, to quote a verse from a long
copyrighted poem that is heard by millions of people viewing a television
broadcast does not change the fair use into an infringing use. The above reasoning applies equally to
creative fair use and educational fair use, but not to personal use. As a fair
use, personal use is unique in that it involves only a use of the work, not the
copyright, and is always a protected use. For example, to copy a copyrighted
motion picture off-the-air for later viewing is a personal use of the work. E. Nonstatutory Fair Use Guidelines The promulgation of "fair use
guidelines" by various groups has become a common practice since the
"Classroom Guidelines" were included in the House Report on the 1976
Act. These guidelines are quantitative in nature, providing the precise amount
of a work to be used. For example, the "Classroom Guidelines" permit a
teacher to make a single copy "for his or her individual scholarly research
or use in teaching or preparation to teach a class" of a chapter from a
book or an article from a periodical or newspaper; however, multiple copies for
classroom use must meet the tests of brevity and spontaneity. Brevity is defined
as "a complete article, story or essay of less then 2,500 words, or (b) an
excerpt from any prose work of not more than 1,000 words or 10% of the work,
whichever is less, but in any event a minimum of 500 words."(19) However, since any set of quantitative rules
has the effect of overriding the fair use statute, it is important to understand
that such guidelines (including the "Classroom Guidelines") are not
law and thus cannot be legally binding. Quantifying fair use is contrary to the
statutory right of fair use, which authorizes the user to exercise his or her
judgment in accordance with the provisions of section 107. Private agreements do
not eviscerate constitutionally based rights granted by congressional
statutes--at least for those who are not parties to the agreement. F. Overbroad Copyright Notices Copyright notices are often inflated to read
as if the copyright holder's right to copy is absolute, saying, for example,
that no one may copy any portion of the book in any manner without the written
permission of the publisher.(20) Literal compliance with such
inflated notices would do away with the right of fair use, a clear signal that
such notices are incorrect. This conclusion is supported by the 1991 holding of
the U.S. Supreme Court that there is a constitutional right to copy
public domain material from a copyrighted work, which could not be exercised if
the copyright holder's right to copy were absolute.(21) As
recently as 1994, the Court said: "We have often recognized the monopoly
privileges that Congress has authorized . . . are limited in nature and must
ultimately serve the public good."(22) In other cases,
the Court has said copyright "protection has never accorded the copyright
owner complete control over all possible uses of his work;"(23)
the ultimate aim of copyright is "to stimulate artistic creativity for the
general public good,"(24) and "the primary
objective of copyright is not to reward the labor of authors, but '[t]o promote
the Progress of Science and useful Arts.'"25 These rulings, of course,
would mean nothing if the copyright holder's right to copy were absolute. Copyright notices that assert rights of the
copyright holder beyond those granted by the copyright statute are extra-legal
and inefficacious. The statute provides that a copyright notice shall consist of
the word "Copyright" or the letter "C" in a circle, the name
of the copyright owner, and the date. One may disregard extraneous matter in
copyright notices and rely on the copyright statute for determining what may be
copied as a matter of fair use. The application of the fair use statute,
section 107, requires respect for the rights of copyright holders without
compromising one's own rights. This is not a matter of selfishness, for to the
extent users compromise their own rights in the fair use of copyrighted
material, they compromise the rights of all users and ultimately defeat one of
the purposes of the fair use: to keep the expanded copyright monopoly within its
constitutional boundaries. The effort requires the exercise of sound judgment
and common sense that depends in large part upon understanding that copyright
law is not an end in itself, but a means to an end--the promotion of
learning--which is essential to a free society. The 1976 Copyright Act states the rights of
copyright holders in great detail, an indication of the importance of regulating
copyright and maintaining an appropriate balance between the rights of holders
and the rights of users. Despite their complexity, however, the rules as to the
rights of copyright holders--apart from the adaptation right--can be reduced to
one: The exclusive right to sell copies of the work to the public, to perform
the work publicly, or to display the work publicly, depending upon the type of
work. That is, the copyright holder's right is essentially a monopoly for
marketing the work. The fair use statute provides in plain
language that "multiple copies for classroom use" and copying for
scholarship and research are exemplars of fair use. The rule of thumb for
copying for these purposes, then, can be stated as follows: Does the copying
interfere with the selling of the work in the marketplace? To put the point
another way: Is the copying a substitute for purchasing a work that is readily
available? If the answer is no, the presumption is that educational use is a use
of the work, which is always a fair use consistent with the constitutional
purpose of copyright, the promotion of knowledge and learning. The following legal authorities are
constitutional, statutory, and decisional law, although the decisions are
limited to those of the U.S. Supreme Court. They are provided for purposes of
reference. Comments are provided for additional background. A. The
Copyright Clause of the U.S. Constitution (Article I, section 1, clause 8) The Congress shall have Power . . . To Promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries. . .
. Comment: The copyright clause is in the
intellectual property clause, which also contains the patent clause. The
italicized portions above are the copyright clause. The source of this language
is the title of the first English copyright statute, called the State of Anne, 8
Anne, c. 19, enacted in 1710, which also served as the model for the first U.S.
Copyright Act in 1790. The title of the English statute reads: An act for the encouragement of learning, by vesting the copies of
printed books in the authors or purchasers of such copies, during the time
therein mentioned. Apparently the copyright clause is the only
provision of the Constitution for which we can identify its precise source. The
English copyright statute is thus an annotation of the copyright clause, and
since the English act applied only to printed books, "the exclusive
Right" in the copyright clause was probably intended to be the right to
publish the writings, that is a monopoly for publishing books. In view of the
various media by which a work can be marketed, the right today can best be
interpreted as "the exclusive Right" to market work. B. Selected Provisions of the Copyright Statute
(17 U.S.C. §101 et seq.) a) A "collective work" is a work, such as a periodical
issue, anthology, or encyclopedia, in which a number of contributions,
constituting separate and independent works in themselves, are assembled into a
collective whole. b) A "compilation" is a work formed by the collection and
assembling of preexisting materials or of data that are selected, coordinated,
or arranged in such a way that the resulting work as a whole constitutes an
original work of authorship. The term "compilation" includes
collective works. c) "Copies" are material objects, other than phonorecords,
in which a work is fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in which the work is
first fixed. d) A work is "created" when it is fixed in a copy or
phonorecord for the first time; where a work is prepared over a period of time,
the portion of it that has been fixed at any particular time constitutes the
work as of that time, and where the work has been prepared in different
versions, each version constitutes a separate work. e) A "derivative work" is a work based upon one or more
preexisting works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications which, as a whole, represent an original
work of authorship, is a "derivative work." f) To "display" a work means to show a copy of it, either
directly or by means of a film, slide, television image, or any other device or
process or, in the case of a motion picture or other audiovisual work, to show
individual images nonsequentially. g) "Publication" is the distribution of copies or
phonorecords of a work to the public by sale or other transfer of ownership, or
by rental, lease, or lending. The offering to distribute copies or phonorecords
to a group of persons for purposes of further distribution, public performance,
or public display, constitutes publication. A public performance or display of a
work does not of itself constitute publication. Comment: There are three points to be
noted. First, not all the statutory definitions are listed. Second, the statute
does not define a creative work (the traditional paradigm for copyright as an
author's right), but it describes compilations and derivative works in some
detail. Thus, it distinguishes between the kinds of compilations, that is a
compilation of data and collective works. This is because rights as to
compilations and derivative works are limited by the requirement of originality,
as section 103 makes clear. Third, the definitions of "copies" and
"created" make clear that a work is distinct from a copy of the work.
Because a work cannot be protected unless it is fixed in a copy, it follows that
it is the copy that is protected, not the work. The fact that the copy is
congruent with the work does not change this, because the work cannot be
protected unless and until it is fixed. a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known or
later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work. Comment: Section 102(a) states the
constitutional condition for copyright, the writing of an author, in the words
"an original work of authorship fixed in a tangible medium of
expression." This condition must be fulfilled before the other provisions
of the statute comes into play. The most important change from prior statutes
in section 102(a) is that copyright exists from the moment of fixation. Under
prior statutes, copyright did not exist until the work was published (a means of
insuring public access). The list of the categories of copyrightable works is
primarily for the convenience of the Copyright Office, which registers
copyrights, and has no substantive effect. A literary work, for example, cannot
be protected by copyright if it is not original. Section 102(b) excludes ideas from copyright
protection and is the codification of a nineteenth century U.S. Supreme court
decision, Baker v. Selden,(25) which held that
copyright would not protect a system of bookkeeping. 3. Sec.
103. Subject Matter of Copyright: Compilations and Derivative Works a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any part of
the work in which such material has been used unlawfully. b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent of,
and does not affect or enlarge the scope, duration, ownership, or subsistence
of, any copyright protection in the preexisting material. Comment: Section 103 limits the
copyright protection for compilations and derivative works to the original
components of those works and should be read in light of the definitions of
"compilations" and "derivative works" in section 101. 4. Sec.
105. Subject Matter of Copyright: United States Government Works Copyright protection under this title is not
available for any work of the United States Government, but the United States
Government is not precluded from receiving and holding copyrights transferred to
it by assignment, bequest, or otherwise. Comment: This section emphasizes that
works of the U.S. Government cannot be protected by copyright. The section does
not apply to works of state governments. Subject to sections 107 through 120, the owner
of copyright under this title has the exclusive rights to do and to authorize
any of the following:
Comment: Section 106 states the rights
of the copyright holder. Three points are important: (1) the copyright holder
must comply with section 102(a) before these rights are available; (2) even if a
work is copyrighted, the copyright does not protect public domain material
within the work; and (3) even though the rights are said to be exclusive, they
are subject to the limitations in sections following section 106, the most
important of which is the fair use statute, section 107. The basic issue about section 106 is whether
section 106(1) is an absolute right to copy. Since the rights of section 106 are
subject to sections 107 through 120, the copyright holder's right to reproduce
copies cannot be absolute. In view of the limitations on Congress' power, there
is serious doubt that Congress could grant the copyright owner the absolute
right to reproduce copies. 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:
Comment: Section 107 is a statute
within a statute. The important point about the section is that it grants rights
to users and is to be interpreted accordingly. Arguably, without section 107,
the 1976 Copyright Act would be unconstitutional in light of the limitations in
the copyright clause on Congress' power to enact copyright legislation.Thus,
without section 107, section 106(1) would give the copyright owner the absolute
right to copy, which would mean that copyright could be used to inhibit rather
to promote learning. a) Initial Ownership. Copyright in a work protected under this
title vests initially in the author or authors of the work. The authors of a
joint work are co-owners of copyright in the work. b) Works Made for Hire. In the case of a work made by hire, the
employer or other person for whom the work was prepared is considered the author
for purposes of this title, and unless the parties have expressly agreed
otherwise in a written instrument signed by them, owns all of the rights
comprised in the copyright. Comment: Section 201(a) makes clear
that ownership of a copyright vests initially in the author. Thus publishers
hold copyrights as assignees of authors. Section 201(b) is what is called a
legal fiction, that is a proposition that has legal effect but is not true as a
matter of fact. The fiction in this case is that the employer of an author for
whom the work is prepared is the author of the work. It is necessary to use a
fiction to place the copyright in the employer because the copyright clause
enables Congress to grant copyright only to authors. An important point about section 201(a) is
that it deals only with ownership of the copyright, not the work. From this, it
follows that the copyright statute itself deals only with the ownership of the
right, not of the work. Indeed, the copyright clause does not enable Congress to
grant ownership of writings, only an "exclusive Right" to which
writings are subject. 8. Sec.
202. Ownership of Copyright as Distinct From Ownership of Material Object Ownership of a copyright, or of any of the
exclusive rights under a copyright, is distinct from ownership of any material
object in which the work is embodied. Transfer of ownership of any material
object, including the copy or phonorecord in which the work is first fixed, does
not of itself convey any rights in the copyrighted work embodied in the object;
nor, in the absence of an agreement, does transfer of ownership of a copyright
or of any exclusive rights under a copyright convey property rights in any
material object. Comment: Section 202 is consistent with
the view that the subject of the copyright statute is ownership of the
copyright, not the work. Thus, it makes clear that ownership of the copyright is
separate from the physical object in which the work is embodied, that is the
copy, as defined in section 101. This view is consistent with the U.S. Supreme
Court rulings. The statute is much longer and more complex
than these excerpts indicate. A copy of the complete statute is available from
the Copyright Office, Library of Congress, Washington, D. C., and, of course,
the statute may be examined in any law library. It is Title 17 of the United
States Code. C. Copyright Decisions of the U.S. Supreme Court Decisions of the U.S. Supreme Court are the
law of the land the same as a statute enacted by Congress. Once rendered, only
the Court can change the law that a decision contains, unless Congress enacts a
statute to overturn it. If the decision is based on the U.S. Constitution,
however, not even Congress can overturn it. Only an amendment to the
Constitution can change constitutional law. The Supreme Court has rendered relatively few
copyright decisions in its two-hundred year history, but those that it has
rendered establish the constitutional parameters of copyright and thus are
critical to an interpretation of the copyright statute. The following cases are
the most important for this purpose. Each is discussed under a heading stating
the point for which the case is discussed. Wheaton v. Peters, 34 U.S. 591 (1834).
This case was the Supreme Court's first copyright case. A former reporter of the
Supreme Court, Wheaton, who published the Court's decisions, sued his successor,
Richard Peters, who reprinted Wheaton's reports along with the reports of later
decisions thaThe published. Wheaton depended upon royalties from the sale of his
reports as compensation for his work as reporter and sued Peters for copyright
infringement. Wheaton claimed that in addition to the
statutory copyright, an author was entitled to a copyright under the common law
by reason of the natural law. An author creates a work, his lawyers argued, and
it is only right and just thaThe or she have the copyright of that work (in
perpetuity). The Court rejected Wheaton's argument, and
said: That an author, at common law, has a property in his manuscript, and may
obtain a redress against any one who deprives him of it, or by improperly
obtaining a copy, endeavors to realize a profit by its publication, cannot
be doubted; but this is a very different right from that which asserts a
perpetual and exclusive property in the future publication of the work,
after the author shall have published it to the world. The argument that a
literary man is as much entitled to the product of his labor as any other
member of society, cannot be controverted. And the answer is, thaThe
realizes this product by the transfer of his manuscripts, or in the sale of
his works, when first published. A book is valuable on account of the matter
it contains, the ideas it communicates, the instruction or entertainment it
affords. Does the author hold a perpetual property in these? Is there an
implied contract by every purchaser of his book that he may realize whatever
instruction or entertainment which the reading of it shall give, but shall
not write out or print its contents. (33 U.S. at 657) Congress . . . by this [copyright] act,
instead of sanctioning an existing right, as contended for, created it. (33
U.S. at 661) Comment: The Wheaton case
established the theoretical base for American copyright law under the
Constitution and that base still exists today. Copyright is a limited monopoly
granted by a statute enacted by Congress. Had the Court ruled for Wheaton, the
result would have been that copyright is an unlimited monopoly granted by
judicial decisions rendered by judges. 2. Ownership of Copyright Is Separate From
Ownership of a Copy of the Work Stephens v. Cady, 55 U.S. 528 (1852).
In this case, the defendant bought the copperplate of a map at a sheriff's sale,
and the question was whether the purchase of the plate carried with it the right
to print and publish the map engraved upon it. The Court said it did not. [T]he property acquired by the sale in the engraved plate, and the
copy-right of the map secured to the author under the act of Congress, are
altogether different and independent of each other, and have no necessary
connection. The copy-right is an exclusive right to the multiplication of
the copies, for the benefit of the author or his assigns, disconnected from
the plate, or any other physical existence. (55 U.S. at 529) The Court analogized the property in the plate
to the property in a manuscript. [T]he property in the copy-right is regarded as a different and distinct
right, wholly detached from the manuscript, or any other physical existence,
and will not pass with the manuscript unless included by express words in
the transfer. (55 U.S. at 530) Comment: Apparently this is the first
Supreme Court case that makes clear the distinction between the ownership of the
copyright and the ownership of a physical manifestation of the work. There are three versions of a work for
copyright purposes: the work, its fixation, and copies of the work as fixed. A
work, of course, can exist independently of fixation, which is the original copy
made by the author, e.g. a manuscript, which in turn is used to make copies. The
term fixation is used to distinguish the original copy from the copies that are
made from it to be sold, e.g., a book. In this case, the copper plate was the
original fixation owned by the artist who created it and which, the Court held,
could not be used to make copies, because the artist continued to own the
copyright; if the owner of the copper plate made copies, he would be using the
copyright. American
Tobacco Co. v. Werckmeister,
207 U.S. 284 (1907). This case was an infringement action against the
American Tobacco Co. for copying and using a painting for advertising without
the permission of the copyright owner, to whom the artist had sold the
copyright. The defense was that the painting had been publicly exhibited without
a copyright notice, which the statute required. The Court held that the notice
did not have to be affixed to the original painting, only copies of the
painting. Therefore, the copyright had not been lost by publicly displaying the
painting without the copyright notice. [T]he purpose of the copyright law is not so much the protection of the
possession and control of the visible thing, as to secure a monopoly having
a limited time, of the right to publish the production which is the result
of the inventor's thought. (207 U.S. at 292) It is not the physical thing created, but the right of printing,
publishing, copying, etc., which is within the statutory protection. (207
U.S. at 297) While it is true that the property in copyright in this country is the
creation of statute, the nature and character of the property grows out of
the recognition of the separate ownership of the right of copying from that
which inheres in the mere physical control of the thing itself, and the
statute must be read in the light of the intention of Congress to protect
the intangible right as a reward of the inventive genius that has produced
the work. (207 U.S. at 297-98) Comment: This case provides the most
extensive discussion of the nature of copyright as separate from the work. The
copyright of the painting was distinct from, and did not pass with, the sale of
the painting. As the case makes clear, there is a difference between the use of
the copyright and the use of the work, and the former is what the Copyright Act
protects. The Court noted that the painting (the work) was hanging in a dining
room in England, a traditional use of such a work. Baker v. Selden, 101 U.S 99 (1880). The
plaintiff in this case held the copyright on a book about bookkeeping and sued
for infringement because the defendant published a book using the same ideas but
expressing them in a different way. The Court said that if plaintiff had the
exclusive right to use the system explained in the book, the defendant
infringed; but if the system was not protected by copyright, the defendant did
not infringe. The Court held for the defendant. [T]here is a clear distinction between the book, as such, and the art
which it is intended to illustrate. The mere statement of the proposition is
so evident, that it requires hardly any argument to support it. (101 U.S. at
102) Comment: Baker v. Selden is one
of the two or three most important copyright cases of the Supreme Court. It is
usually cited for the proposition that copyright cannot be used to protect
ideas, which is codified in section 102(b) of the Copyright Statute. The
traditional statement is that copyright protects the expression of the ideas,
but not the ideas themselves. The fact that copyright cannot protect ideas
means, of course, that the author cannot own the ideas, which is the basis of
the fundamental proposition for which the case stands: The author of a work does
not own the work, only the copyright of the work. The decision was made long ago that the
statute would provide only rights to which the work is subject. Thus the
copyright clause does not empower Congress to grant ownership of the work to an
author, only ownership of the copyright. 4. Copyright Is a Series of Rights to Which
a Work Is Subject Dowling
v. United States ,
473 U.S. 207 (1985). This case was a criminal prosecution for the
transportation of stolen goods under a federal statute. The goods that the
defendant shipped were "bootleg" phonorecords of Elvis Presley sound
recordings, which the defendant had acquired lawfully. The Court had to
determine "whether phonorecords that include the performance of copyrighted
musical compositions for the use of which no authorization has been sought nor
royalties paid are consequently 'stolen, converted or taken by fraud' for
purposes" of the statute under which defendant was prosecuted. 473 U.S. at
216. The Court held that they were not and reversed
the conviction, but in order to make its decision, it had to determine the
nature of copyright, and that is the importance of the case for understanding
copyright. The following quotes from the case, with citations omitted, define
copyright. [T]he Government's theory here would make theft, conversion, or fraud
equivalent to wrongful appropriation of statutorily protected rights in
copyright. The copyright owner, however, holds no ordinary chattel. A
copyright, like other intellectual property, comprises a series of carefully
defined and carefully delimited interests to which the law affords
correspondingly exact protections. 'Section 106 of the Copyright Act confers
a bundle of exclusive rights to the owner of the copyright.' . . . However,
'[t]his protection has never accorded the copyright owner complete control
over all possible uses of his work.' . . . For example, §107 of the
Copyright Act 'codified the traditional privilege of other authors to make
'fair use' of an earlier writer's work.' . . . Thus, the property rights of
a copyright holder have a character distinct from the possessory interest of
the owner of simple 'goods, wares, [or] merchandise,' for the copyright
holder's dominion is subjected to precisely defined limits. . . . The infringer invades a statutorily defined province guaranteed to the
copyright holder alone. But he does not assume physical control over the
copyright; nor does he wholly deprive its owner of it is use. (473 U.S. at
216-217) Comment: The Court's careful definition
of copyright made clear the nature of copyright as a series of limited rights to
which a work is subject; but perhaps it is most useful in making clear the
distinction between the copyright and the work. Although it was clear that the
defendant was wrong in infringing the copyright, that did not give the U.S.
Government, acting under a criminal statute, the right to disregard the
possessory property right the defendant had in the physical manifestation of the
recordings. 5. Copyright Does Not Negate Property Right
of Purchaser of Copy of the Work Bobbs-Merrill
Co. v. Straus,
210 U.S. 339 (1908). In this case, the copyright holder sought to use the
copyright notice to control the purchase price of books sold at retail by R. H.
Macy Co., which had purchased the books from a wholesaler. Macy Co. sold the
book for 89 cents, despite the following legend inserted with the notice: The price of this book at retail is $1 net. No dealer is licensed to sell
it at a less price, and a sale at a less price will be treated as an
infringement of the copyright. The Bobbs-Merrill Company. The copyright holder contended "the
statute vested the whole field of the right of exclusive sale in the copyright
owner; thaThe can part with it to another to the extent thaThe sees fit, and may
withhold to himself, by proper reservations, so much of the right as he
pleases." 210 U.S. at 349. The Court said the precise question is: Does the sole right to vend . . . secure to the owner of the copyright
the right, after a sale of the book to a purchaser, to restrict future sales
of the book at retail, to the right to sell it at a certain price per copy,
because a notice in the book that a sale at a different price will be
treated as an infringement. . . . (210 U.S. at 350) In our view the copyright statutes, while protecting the owner of the
copyright in his right to multiply and sell his production, do not create
the right to impose, by notice, . . . a limitation at which the book shall
be sold at retail by future purchasers, with whom there is no privity of
contract. . . . What the complainant contends for embraces not only the
right to sell the copies, but to qualify the title of a future
purchaser by the reservation of the right to have the remedies of the
statute against an infringer because of the printed notice of its purpose so
to do unless the purchaser sells at a price fixed in the notice. To add to
the right of exclusive sale the authority to control all future retail sales
. . . would give a right not included in the terms of the statute, and, in
our view, extend its operation, by construction, beyond its meaning, when
interpreted with a view to ascertaining the legislative intent in its
enactment. (emphasis added). (210 U.S. 350-51) Comment: A person who buys a book has a
property right in that book as a physical object. This case says that copyright
cannot be used to negate that property right by the use of a copyright notice
attempting to restrict that right. The same reasoning applies to copyright
notices that purport to restrict the right of a the owner of a book to copy any
passages from the book. Sony
Corp. v. Universal City Studios ,
464 U.S. 417 (1984) . This was a case brought by motion picture studios
against the manufacturer of videocassette recorders that could be used to copy
copyrighted motion pictures off-the-air when broadcast on television. The theory
was that the manufacturer of a device capable of infringing copyrighted works
should be held liable for the use of that device to infringe. The purpose of the litigation was to get a
ruling that copying copyrighted motion pictures off-the-air was an infringement
in order to lay the predicate for a compulsory license, which could work in
several ways. One way would be to require the manufacturer to pay fees to a fund
for every VCR manufactured or sold; the other would be to impose a fee on blank
tapes. Either way, of course, the consumer would pay the fee. The license fees
would be distributed to the copyright holders, that is, the motion picture
companies, according to a formula. The Supreme Court sustained the fair use
defense and thus defeated the plan for compulsory license fees, and in doing so
discussed the philosophy underlying copyright. The monopoly privileges that Congress may authorize are neither unlimited
nor primarily designed to provide a special private benefit. Rather, the
limited grant is a means by which an important public purpose may be
achieved. (464 U.S. at 429) [The task is to define] the scope of the limited monopoly that should be
granted to authors . . . to give the public appropriate access to their work
product. . . . [T]his task involves a difficult balance between the
interests of authors . . . in the control and exploitation of their writings
. . . on the one hand, and society's competing interest in the free flow of
ideas, information, and commerce on the other hand. . . . (464 U.S. at 429) [Copyright] protection has never accorded the copyright owner complete
control over all possible uses of his work. . . . All reproductions of the
work . . . are not within the exclusive domain of the copyright owner; some
are in the public domain. Any individual may reproduce a copyrighted work
for a 'fair use'; the copyright owner does not possess the exclusive right
to such a use. . . . anyone . . . who makes a fair use of the work is not an
infringer of the copyright with respect to such use. (464 U.S. at 432-33) Comment: The Court held that an
individual who copies a copyrighted motion picture off-the-air to view it at a
later time is making a fair use of the copyright. Although the Court did not use
the term, this use is appropriately characterized as a personal use. It is interesting to note that immediately
after the Court handed down the Sony decision, members of the motion
picture industry sought to have Congress overturn it by statute, claiming that
otherwise the industry would be ruined. Congress refused. That was in 1984, and
the industry seems to be prospering very well with the sale and rental of
videocassettes, although people are still free to copy the motion pictures
off-the-air as a matter of personal use. Feist
Publications, Inc. v. Rural Telephone Co .,
499 U.S. 390 (1991) . In this case, the Court overruled some seventy years
of precedent and held that the white pages of telephone directories do not have
sufficient originality to be protected by copyright; originality is a
constitutional condition for copyright protection. Said the Court: Originality is a constitutional requirement. (449 U.S. at 346) As one pair of commentators succinctly puts it: 'The originality
requirement is constitutionally mandated for all works.' Patterson &
Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law
Reports and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989).
(449 U.S. at 347) The mere fact that a work is copyrighted does not mean that every element
of the work may be protected. Originality remains the sine qua non of
copyright; accordingly, copyright protection may extend only to those
components of a work that are original to the author. (Patterson & Joyce
800-802) It may seem unfair that much of the fruit of the compiler's labor may be
used by others without compensation. As Justice Brennan has correctly
observed, however, this is not 'some unforeseen byproduct of a statutory
scheme.' . . . It is, rather, 'the essence of copyright,' . . . and a
constitutional requirement. (emphasis added). (449 U.S. at 349) Without a doubt, the 'sweat of the brow' doctrine flouted basic copyright
principles. . . . But 'sweat of the brow' courts took a contrary view; they
handed out proprietary interests in facts . . . 'But to accord copyright
protection on this basis alone distorts basic copyright principles in that
it creates a monopoly in public domain. . . .' (499 U.S. at 354) Comment: The Feist case is one
of the most important copyright cases the Supreme Court has decided. The Court's
emphasis on originality as a constitutional condition for copyright shows the
extent to which copyright law protects material in the public domain from the
monopoly of
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8. Primary Function of Copyright is to
Provide Public Access Fogerty
v. Fantasy ,
Inc., 510 U.S. 517 (1994) . In this case, defendant won an infringement
action and applied for attorney's fees under section 505 of the copyright
statute. Although the lower court granted successful plaintiffs attorneys' fees
as a matter of right, it treated successful defendants differently and required
them to show that the defeated plaintiff's action was frivolous or brought in
bad faith. The Supreme Court rejected this dual standard and said: Because copyright law ultimately serves the purpose of enriching the
general public through access to creative works, it is peculiarly important
that the boundaries of copyright law be demarcated as clearly as possible.
To that end, defendants who seek to advance a variety of meritorious
copyright defenses should be encouraged to litigate them to the same extent
that plaintiffs are encouraged to litigate meritorious claims of
infringement. . . . [A] successful defense of a copyright infringement
action may further the policies of the Copyright Act every bit as much as a
successful prosecution of an infringement claim by the holder of a
copyright. (510 U.S. 527) Comment: The Court's ruling is
important for defendants in infringement actions, but it is more important for
the law of copyright because it emphasizes the purpose of copyright as
"enriching the general public through access." Public access is
ultimately the only justification for the grant of the copyright monopoly. Campbell v. Acuff-Rose,
510 U.S. 569 (1994). Plaintiff music publisher sued defendant rap group for
parodying and recording its copyrighted song, "Oh, Pretty Woman."
Defendant claimed the parody was a fair use. The Court of Appeals held for
plaintiff, saying that commercial use requires a presumption of unfair use,
because the effect on the potential market is the most important element of fair
use. The Supreme Court reversed, holding that a
parody may be a fair use, and explained that the fair use doctrine "calls
for case-by-case analysis. . . . Nor may the four statutory factors be treated
in isolation, one from another. All are to be explored, and the results weighed
together, in light of the purposes of copyright." 510 U.S. at 577. Comment: The Court in this case
corrects two common errors of many lower courts. One error was to treat the
fourth statutory factor (market effect) as being the most important factor; the
other error was to give copyrighted works class treatment by holding, for
example, that since the copying of material from one book is infringement,
copying from all books is infringement. The lower courts used this proposition
as a predicate for granting a permanent injunction enjoining defendant from
copying from any book. The Court took note of this practice and
suggested that "the goals of copyright law . . . are not always best served
by automatically granting injunctive relief when parodists are found to have
gone beyond the bounds of fair use." The Court pointed out that
infringements that are simple piracy are to be distinguished from those raising
reasonable contentions of fair use, and explained that the copyright holder's
interest can be adequately protected by an award of damages for infringement.
510 U.S. at 578 n. 10. 10. Copyright Is to Serve the Public
Interest in Preference to Private Interests Fogerty
v. Fantasy, Inc., 510 U.S. 517 (1994). This case is used for this
proposition because it is the most recent. The passage from the case quoted
below indicates the extent to which the Court has used and relied on the
proposition that copyright is to serve the public interest in preference to
private interests. We have often recognized the monopoly privileges [of copyright] that
Congress has authorized, while 'intended to motivate the creative activity
of authors and inventors by the provision of a special reward,' are limited
in nature and must ultimately serve the public good. Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For
example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
(1975), we discussed the policies under the 1909 Copyright Act as follows: 'The limited scope of the copyright holder's statutory monopoly . . .
reflects a balance of competing claims upon the public interest: Creative
work is to be encouraged and rewarded, but private motivation must
ultimately serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our copyright
law is to secure a fair return for an 'author's' creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for the
general public good.' (Footnotes omitted.) We reiterated this theme in Feist Publications, Inc. v. Rural Telephone
Service Co., 499 U.S. 340 (1991), where we said: 'The primary objective of copyright is not to reward the labor of
authors, but '[t]o promote the Progress of Science and useful Arts.' To this
end, copyright assures authors the right to their original expression,
encourages others to build freely upon the ideas and information conveyed by
a work.' (citations omitted.) Comment: Few copyright scholars would
dispute the point that lower courts have not always ruled in accordance with
these rulings of the Supreme Court. There seem to be two reasons. One is that
courts generally have failed to recognize the distinction between the copyright
and the work. Without this understanding, there is no basis for distinguishing
between the use of the copyright, which requires resort to fair use criteria,
and the use of the work, which does not. The second reason is that copyright has not
been assigned a specific task in regard to the public interest other than the
promotion of knowledge and learning. The general goal tends to succumb to the
specific goal of protecting the copyright holder's private interest. One remedy
for this unbalanced view is to recognize that copyright law protects the public
interest in two specific ways: (1) it protects the public domain; and (2) it
insures access to recorded knowledge and learning. Once these goals are
recognized, it will be easier for courts to maintain a proper balance between
the public interest in protecting the proprietary interest of copyright holders
and the public interest in protecting the right of access for users. Members of the Regents Copyright
Committee Reid Christenberry Corlis P. Cummings Miriam Drake E. Gail Gunnells L. Ray Patterson Bea Yorker William Gray Potter, Chair I promise to answer your message -- click here to send me a personal message
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QUESTION: May she do so?
ANSWER: Yes. This is fair use if instruction is occurring.
ANSWER: This would be fair use so long as access is restricted, e.g., by use
of a password or PIN or other means.
holder.(5)
[T]he effect of a copyright is not to prevent any reasonable use of the
book which is sold. I go to a book-store and I buy a book which has been
copyrighted. I may use the book for reference, study, reading, lending,
copying passages from it at my will. I may not duplicate that book and thus
put it on the market, for in doing so I would infringe the copyright. But
merely taking extracts from it, merely using it, in no manner infringes the
copyright.(12)
in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to display
the copyrighted work publicly; and
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Assistant Vice Chancellor for Instructional Technology
Associate Provost for Information Systems and Technology
Georgia State University
Assistant Vice Chancellor for Legal Affairs
Dean and Director of Libraries
Georgia Institute of Technology
Deputy Chief Legal Advisor
Georgia Institute of Technology
Pope Brock Professor of Law
University of Georgia
Associate Provost for Faculty Relations
Georgia State University
University Librarian
University of Georgia
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