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Everything (Well, Almost) You Wanted to Know About Fair Use But Were Afraid to Ask
What is fair use, and why might instructors be afraid to ask about it? First codified in the Copyright Act of 1976, fair use is an exception to the copyright holder’s control over “works of authorship” such as films, songs, literary works, and academic publications. Fair use allows people to use a work without permission—in certain circumstances—for research and educational purposes. As Dan Donnelly, the recently-retired copyright coordinator for the University Libraries, explains, the fair-use statute in the 1976 law is intentionally simple, vague, and open to broad interpretation. Over the years the courts have made a number of decisions on fair use, but still the “cases represent a broad variety of opinion from panels and judges. And if you sit people down and get them to talk about fair use, you might very well get twice as many opinions as there are people in the room.”
Donnelly became interested in the issue in the late 1970s when he worked in a media unit on campus. At the time the staff used audio recordings for foreign language instruction “with no regard whatsoever for copyright.” But the Copyright Act of 1976 called their attention to the University’s use of such recordings. Donnelly started reading and thinking about the issues, and as his interest grew, so did his responsibilities for educating others on campus about copyright in an educational context. Dan led the University Libraries’ Copyright Information and Education Initiative and developed a training and information program about exercising copyright in technology-based teaching and learning environments for the Digital Media Center. A self-described “fair use advocate,” Donnelly shared with us his insights on fair use and education.
To the best of Donnelly’s knowledge, no academic library has gone to court over fair use and cases have focused on commercial activity. Yet instructors routinely rely on materials that are protected by copyright. Given the vague nature of the fair-use statute, what’s an instructor to do? First, says Donnelly, instructors can relax a little bit because the use of copyrighted material for educational purposes automatically puts into play a fair-use claim. He further recommends that when instructors use copyrighted materials, they should conduct a “four factor” analysis that takes into consideration the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. A Fair Use Analysis tool is available on the University Libraries’ Web site, where instructors can also learn about copyright basics and find resources.
While the Fair Use Analysis tool helps members of the campus community make sense of a statute that is open to broad interpretation, Donnelly cautions that there is no formula that produces cut-and-dried conclusions. The particular facts for each case are unique, and fair use is determined by considering the four factors together, on balance. But Donnelly also suggests that a formulaic approach to fair use would not be desirable. Instead he characterizes the four-factor analysis as an opportunity to educate oneself about policies and practices that not only affect education, but aspects of our everyday lives. For example, Donnelly explains that public awareness of copyright infringement is really understood through the lens of the entertainment industry, which has great interest in restricting unauthorized use of entertainment media. He explains that “the desire to control every bit and byte seems to be always growing in the copyright industry.” The entertainment industry is particularly assertive about copyright protection, sometimes to the point of overreaching their rights.
As an advocate for copyright, Donnelly supports a reasonable and responsible approach that balances the needs of society with those of the individual, as well as educators and holders of copyrighted material. He sees fair use as an opportunity for people to responsibly discuss, analyze, and appreciate others’ creative work. “Fair use is almost a right. People ought to exercise it when they can, or it might go away.”
Last modified Tuesday, 19-Jun-2007 15:33:21 CDT
