Fair Use in the Digital Environment: A Research Guide

Neal Wyatt, Column Editor
Melanie Schlosser, Guest Columnist

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This is my first column as the new The Alert Collector editor. I have huge shoes to fill and am deeply aware of the quality and integrity that Diane Zabel established for this column during the past seven years. I am honored that she would entrust me with her column as she become the editor of this journal.

Fair use affects us all, be we public, academic, special, or school librarians. As part of my plans for this column are to include articles that appeal to a wide range of librarians and readers, I am delighted that Melanie Schlosser has taken on the task of collecting the resources we need when facing a copyright and fair-use question. Ms. Schlosser, an MLS candidate at Indiana University’s School of Library and Information Science and a Fellow in the Digital Libraries Education Program, has a special interest in access to information and digital rights, and works on the front line of these issues as she helps with Indiana University’s Digital Library Program (DLP). Her goal with this column is to provide a useful tool for the ever-increasing number of librarians and library students who work with digital collections or who want to take an active role in ensuring access to information in the digital age.

I hope to continue to edit columns that have as broad an appeal and application. As a collection development and readers’ advisory librarian, I am immersed in the world of books and enjoy nothing more than finding out about new resources and reading pathways. I believe tha interest is not determined by type of library or type of job, but by the wide-ranging interests we have as individuals and collectively as a profession. I hope this space can become a meeting ground for those interests. I invite your comments and suggestions and look forward to sharing wonderful books and resources with you.–Editor.

The Western notion of copyright dates back to the fifteenth century and the advent of movable-type printing presses. When many years of painstaking labor were required to create one manuscript, limitations on copying were unnecessary. The invention of the printing press, however, made mass production and copying of books not only feasible, but profitable. “For the first time, the value of the author’s genius could outweigh the cost of the scrivener’s labor.”¹ It took centuries, however, for the laws to catch up with the technology and determine wh should benefit from the proceeds of book printing. It is no surprise, therefore, that the advent of digital information should shake the very foundations of modern copyright laws. As with the printing press, computing and network technologies have changed the nature of the text. A user’s ability to make a perfect digital copy of a work and distribute it instantly around the world is as far beyond the printing press as the press was beyond the medieval illuminated manuscript. The law is currently in a state of upheaval, with interested parties on all sides (for example, authors, publishers, educators, and the public) struggling to claim their rights as it changes. This research guide gives the reader an overview of the changes that are sweeping the world of copyright by focusing on fair use and its fate in the digital environment.

Fair Use

Article I of the United States Constitution states that Congress shall have the 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.” This brief but powerful statement performs two separate functions. It grants to Congress the authority to create copyright laws, but also reminds the lawmakers that the ultimate goal of any such law must be to serve the public good through “the progress of science and useful arts.” Following this directive, Congress and the courts have always attempted to strike a balance between the rights of authors and the rights of users, but “it is rarely a neat balance that satisfies opposing interests.”² With each new advance in technology, from player piano rolls to photocopiers, the law has adapted, generally granting enough new protections to frustrate users and too few to satisfy rights holders.

One of the most important tools for users of copyrighted information in the United States, often called the safety valve of copyright, has always been the doctrine of fair use. A highly simplified definition of fair use states that it “permits the reproduction, for legitimate purposes, of material taken from a copyrighted work to a limited extent that will not cut into the copyright owner’s potential market for the sale of copies.”³ Fair use as a successful defense against copyright infringement has existed since the 1891 Supreme Court decision in Folson v. Marsh and has been a regular feature in court cases ever since. It was not until almost ninety years later, however, that the doctrine of fair use was set down in law. The Copyright Act of 1976 distilled years of court cases into four factors which contribute to a determination of fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of th copyrighted work.

Fair Use and Digital Information

To understand the upheaval surrounding copyright of digital information, it is necessary to understand the ways in which digital informatio has revolutionized scholarship and communication. The most obvious consequence of the digital revolution is the ability to create and distribute a perfect copy of a work. Some of the most high-profile copyright cases over the past few years have hinged on peer-to-peer file-sharing networks and illegal duplication of CDs and DVDs. To the horror of many copyright holders whose works exist in a digital format, the Internet “has created a new avenue for copyright infringement on a global scale.”⁴ The sophisticated nature of computer technology has created other, less obvious, challenges to traditional copyright law. For example, a strict interpretation of the reproduction right–that only the copyright holder is permitted to make or authorize copies of the work–would make illegal all Internet browsing since it involves making temporary copies in the computer’s short-term memory.

These fears and uncertainties, along with the desire to cooperate with international intellectual-property treaties, led to the 1998 passage of the Digital Millennium Copyright Act (DMCA). DMCA, which significantly altered U.S. copyright law, has been a frequent target of users’ rights advocates. The most controversial portion of DMCA has been the anticircumvention provision, which imposes stiff penalties for circumventing technological protections such as encryption.

The fate of fair use in this environment is uncertain. The biggest threats it faces are license agreements and Digital Rights Management (DRM) technologies and the laws that enforce them. Critics of DMCA often cite fair use as a casualty of the anti-circumvention provision. As summarized in a core legal handbook, “[t]he chief concern of many of these critics is that the statute erodes the ability of parties to make fair use of copyrighted works and that it may ultimately shrink the public domain.”⁵ If a work is protected from unauthorized use by technological means, and circumventing that technology is a crime, how are librarians, educators, and scholars to make fair use of it? DMCA states explicitly that fair use is not to be affected, but its critics have yet to be convinced.

Software distributors and creators of digital content, concerned with unauthorized use, have been reluctant to rely on technological protections alone to enforce the law. Instead, they have turned to license agreements. Before downloading or accessing the product in question the user is required to agree to a set of acceptable uses. Users’ rights advocates have long been wary of these shrinkwrap licenses because they allow providers to basically write their own copyright law. To date, the courts have not ruled on the legality of these agreements, but they are increasingly common in the world of digital content.

These developments mark a type of Wild-West mentality regarding the copyright of digital information. Copyright law is famously difficult to understand and apply with precision. If copyright holders feel they cannot rely on either the public’s understanding and goodwill or the practical barriers to large-scale infringement, they create their own barriers. This is an understandable response to the uncertain state of the law, but it marks a seismic shift in the practice of copyright in the United States. In Copyright’s Highway, Goldstein muses that:

technical protection measures, and legislation buttressing these measures, are a direct challenge to the premise that copyright is a system of balances. They also challenge the more fundamental premise of all forms of intellectual property, that property law is a less costly and more efficient mediator between owners and users than are fences and laws against tearing down fences.⁶

If fences are the order of the day, the rights of users are likely to be hemmed into smaller and smaller regions.

Objectives and Justification

The research supported by this guide is necessary for a number of reasons. First, the unsettled state of copyright law with regard to digital information has practical implications for users of copyrighted information. Librarians need to know how to legally implement an e-reserves system, or if they can reproduce a book jacket on a book discussion guide; teachers need a way to determine how many and what kind of copies they are allowed to make for their classes; and students need to understand that copyright law does, indeed, affect them at school and at home. The handbooks, laws, and guidelines included in this guide can help these and other users to understand their rights and obligations.

The rate at which copyright law is evolving, although frustrating for many, is also an opportunity. Some of the authors cited in this guide suggest that a wholesale reimagining of copyright law is necessary to deal with a new kind of information. Whether or not that will be the case, the law will certainly continue to change. An understanding of the rights of users, starting with fair use, is important for those who want to advocate for their continuation. The educational and library communities need to involve themselves in the creation of the new copyright climate to make sure the needs of users are taken into consideration.

The Law

United States copyright law is available in a number of formats, from a number of sources. The full text of the laws, either as a whole or chapter by chapter, can be downloaded in PDF or text version from the Web site of the Copyright Office. Th laws are also published in print in a number of formats, including Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. Circular 92.

Guidelines

The ambiguity of the law concerning fair use contributes to its strength and flexibility, but it can be frustrating for librarians, university officials, library directors, and other administrators who must constantly evaluate policies and practices against the four factors of fair use (the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use on the potential market) to determine their legality. In an attempt to clarify the law and develop fair-use best practices, a number of organizations have developed “Fair-Use Guidelines.” Without having the force of law, these documents set down reasonable interpretations of fair use in situations ranging from classroom copying to video recording of broadcasts. Since their creation, however, thes guidelines have been a source of controversy. This section includes the most influential guidelines and a series of articles debating their merits.

The Conference on Fair Use. Report to the Commissioner on the Conclusion of the First Phase of the Conference on Fair Use. Washington, D.C.: U.S. Patent and Trademark Office, 1997. Also available on the Web.

The Conference on Fair Use (CONFU) created three sets of guidelines covering digital images, distance learning, and multimedia development.

U.S. Copyright Office. Reproduction of Copyrighted Works by Educators and Librarians. Washington, D.C.: Copyright Office, Library of Congress, 1998. Also available on the Web at: www.copyright.gov/circs

Also known as “Circular 21,” this is a reprint of four sets of guidelines developed in the late 1970s and early 1980s dealing with new technologies and the challenges they posed to copyright-law interpretation. Includes the Commission on New Technological Uses of Copyrighted Works (CONTU) guidelines.

Lunin, Lois F., ed. “Perspectives on Copyright and Fair-Use Guidelines for Education and Libraries.” Journal of the American Society for Information Science 50, no. 14 (1999): 1,304-57.

This series of articles by ten authors, including Kenneth Crews and Laura Gasaway, approaches the issues of fair-use guidelines from a variety of perspectives and in situations ranging from e-reserves and distance learning to interlibrary loan.

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