Intellectual Freedom & Censorship Issues
Lesson 7

Fair Use

We will be providing a brief overview of the fair use exemption in this section of the Tutorial. If you would like more detailed information on how to apply fair use guidelines in an educational environment please look at the Copyright Bay Web site. This site provides information in tutorial format and is easy to use. It is updated often and provides links to other sites on the Web that deal with copyright.

The fair use exemption to copyright was greatly strengthened with the Copyright Act of 1976. Laura N. Gasaway and Sarah K. Wiant provide a nice summary of fair use in their 1994 book Libraries and Copyright: A Guide to Copyright Law in the 1990's. The authors wrote:

The role of the fair use doctrine has been described as a mechanism to ensure that copyright does not become an obstacle that impedes learning. The underlying purpose of fair use is to provide copyrighted materials freely to individuals engaged in criticism, news reporting, scholarship and research; in other words, if the copyrighted work is of importance to the public and proposed use will not unduly devalue the copyright, it is in the public interest to suspend an otherwise exclusive right for that use. By this exception, the television film reviewer is permitted to include clips of a new movie on a newscast and the critical biographer of a living writer may print passages from novels in the biography, both without paying royalties. (p. 26)

There is no one measure that is applied to determine fair use. Fair use can be assumed if such use meets any of the items in the below four-pronged test :

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
   • If the intended use enhances education, free speech, or the advancement of knowledge, many argue that fair use should apply regardless of whether the use is for commercial or non-commercial purposes.
2. The nature of the copyrighted work
   • Greater copyright protection has traditionally been given to creative works. The greater the creative effort needed to produce a work, the less likely fair use will be considered an appropriate defense to copyright infringement.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
   • Only a limited portion of a copyrighted work may be used for fair use purposes. There is no set percentage, however, the larger the percentage of a work that is used, the greater the likelihood a court ruling of copyright infringement.
4. The effect of the use upon the potential market value for or value of the copyrighted work.
   • If use of the copyrighted item is shown to have caused economic damage to the copyright owner a ruling of copyright infringement will be made.

Questions regarding the appropriate use of the fair use exemption are typically settled in court. The court will apply the same four-pronged test to help it determine whether copyright has been violated.

As you see, fair use does not give a person the right to use a copyrighted work in anyway they see fit. Fair use attempts to balance the intellectual and economic control of the copyright owner with the legitimate need of the public for open access to information and knowledge. The fair use exemption to copyright law attempts to walk a middle ground.

For those who are frustrated by copyright law and its limiting effect on the free distribution of information we suggest you think about a few issues:

• If copyright law did not exist, authors and publishers would have little incentive to spend their time and money producing works that anyone could legally copy or sell without their permission.
• Without the guarantee of copyright the distribution of new knowledge might actually decline because authors would have no protection from those wishing to plagiarize their work.
• Copyright law is designed to work in a capitalist economic system where people are rewarded for their individual effort. In order to seriously change copyright law and the legitimate economic and intellectual protection it provides a copyright owner, society would have to consider modifying the capitalist economic system. Copyright law points out the conflict inherent in a society with a democratic political system and a non-democratic economic system (capitalism) when it comes to information and knowledge dissemination. Fair use attempts to balance these competing economic and political interests, but it only goes so far, and it leaves in place the underlying structure of copyright law.

After you finish thinking about these issues click on the "Continue" button below.

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