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The Diminishing Fair Use Doctrine

Magazine article Information Today

The Diminishing Fair Use Doctrine

Article excerpt

One of the fascinating things about American law is how an act of Congress that has remained largely unaltered for a quarter century can see its authority diminished by a combination of technological change and collateral legal actions. Such is the case with copyright's fair use doctrine. It has been on the books, virtually unchanged, for the last 26 years. Yet it has become increasingly challenged and weakened by congressional acts-such as the Digital Millennium Copyright Act (DMCA)-and the changing nature of intellectual property formats and technologies. November and December 2000 saw a series of actions that outline the practical and legal clouds that presently surround fair use.

The fair use doctrine was introduced as part of the 1976 Copyright Act, which was the first major overhaul of U.S. copyright law in nearly 70 years. The doctrine traces its foundations to the U.S. Constitution's copyright clause: "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." The law began to recognize that in order for there to be progress in science and the arts, the grant of copyright had to be flexible enough so that the knowledge protected by copyright could also serve as the basis of new knowledge. Courts began to carve out exceptions to copyright for research, teaching, news reporting, and other productive purposes.

The Copyright Act of 1976

These decisions were codified in Section 107 of the 1976 Copyright Act (17 U.S.C Section 107; available online at http://us code.house.gov/usc.htm.) The section provides that use of copyrighted works for purposes such as "criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright." That isn't necessarily an exhaustive list of legitimate purposes-court decisions have also recognized parody and satire-but for most intentions it constitutes the range of possible uses of copyrighted material that falls within the doctrine.

Additionally, the section outlines four parameters that are utilized to determine whether uses within those categories are considered fair. These "four factors" are: 1) the purpose and character of the use-favoring nonprofit and educational uses over commercial uses, 2) the factual or creative nature of the original work, 3) the amount and substantive value of the work being copied relative to the work as a whole, and 4) the effect of the use on the market for or value of the copyrighted work. No one factor is theoretically more important than others (although the fourth factor concerning market value is viewed by some courts as carrying greater weight), nor is it a matter of "winning" on a majority of the factors to find a use fair. In evaluating a fair use challenge, the court considers the factors collectively and in light of the underlying public policy in favor of new and transformative uses.

Fair Use Regardless of Format

The doctrine, like the rest of the Copyright Act, was and is intended to be technology-neutral. The law was to apply equally to all formats of copyrighted material, and to any technology used to duplicate the material. One of the first major cases under the act dealt with a technology innovation's impact on copying and fair use. In the 1984 Supreme Court (http://www.supremecourt us.gov) case Sony Corp. v. Universal Studios, the court reviewed a challenge by various movie and television studios to the newfangled home videocassette recorder. The decision determined that as long as copying equipment could be used for legitimate, unobjectionable purposes it was legal even if it would be capable of infringing uses. The court further said that personal uses such as "time-shifting" were considered fair uses.

In many respects, the limits of copying technologies contributed to the strength and continuity of the fair use doctrine. Photocopying and audio or videotape duplication were inherently cumbersome and created an inferior product in comparison to the original. …

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