News & Blog Posts

Fair Use Week 2021

By LeEtta Schmidt, University of South Florida Libraries

One of your research sources makes a provocative statement with authority and insight. You quote this source in your latest article to illustrate how other scholars are analyzing your topic. You have copied and reprinted part of their work, but copyright law makes an exception for this fair use.

A news article reports an event and witness insight that would benefit the students in your class, and help them fully engage with the course content. You share a portion of this article with your class.  You have made copies and distributed the work, but copyright law makes an exception for this type fair use.

Read the full blog: https://lib.usf.edu/edlibreport/2021/02/09/fair-use-week-2021/

If You Could Be the Judge of Fair Use…

By the Center for Media and Social Impact

Is fair use a “grey area”? Not if you know the law. Then it’s a flexible, robust tool for digital culture. Test your knowledge!

Happy Fair Use Week! Fair use, the right to reuse someone else’s copyrighted material for new purposes that don’t intrude on the copyright holder’s market, is often described as “risky,” “uncertain,” or a “grey area.” But today’s fair use has become a pretty low-risk, high-value activity. In fact, it’s so routine that a lot of people don’t even realize they’re employing fair use. Students quote scholars in their term papers–that’s fair use. Journalists quote from corporate documents–ditto. Television news features someone whose ringtone accidentally goes off–also fair use. Filmmakers use fair use to make their points visually or auditorally (for instance a montage of riffs from pop-songs connoting a historical moment, or a collage of magazine covers, TV news clips and audio). Podcasters include clips from a news program to catch you up, to critique it, or to illustrate a point. Again, fair use.

Read the full blog: https://cmsimpact.org/fair-use-blog/if-you-could-be-the-judge-of-fair-use/

Can Fair Use Survive the CASE Act?

By Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright. Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider. The defense of fair use will also be on the docket.

Read the full blog: http://blogs.harvard.edu/copyrightosc/2021/02/22/fair-use-week-2021-day-one-with-guest-expert-kenneth-d-crews/

photo of Bernie Sanders wearing mittens seated in a chair being lifted up into blue sky by huge bunch of multicolored balloons

We’re All Fair Users Now

Today kicks off Fair Use Week, an annual celebration of the important doctrine of fair use/fair dealing. Previously, ARL has debunked common fair use myths, and reviewed the fundamentals of fair use. This year, in acknowledgement that our world has changed since February 2020, we highlight three ways that fair use has allowed us to move our lives online during the COVID-19 pandemic.

First, just a little background. Fair use is an important right that is built into the US Copyright Act and allows the public to use copyrighted materials without asking for permission. Described by Justice Ruth Bader Ginsburg as a built-in accommodation to the First Amendment, fair use balances the exclusive rights of authors to reproduce and distribute their works with the rights of users to borrow, lend, and transfer those works. This balance is critical to the constitutional purpose of copyright: to promote the progress of science and useful arts. Scholarship builds on previous work, and researchers and educators rely on the fair use doctrine to create high-quality learning objects and to incorporate the full breadth of prior work into their current inquiries. Artists in all disciplines rely on fair use to build upon others’ work in their own creations. Ok, on to the examples.

Teaching and Learning

Teaching and learning have mostly moved online, but even before COVID-19 educators and learners could rely on fair use for online education. To support students, librarians, and open educators, American University College of Law released a Code of Best Practices in Fair Use for Open Educational Resources. Developed in consultation with practitioners and other experts, the code includes principles for how fair use may apply in common open education scenarios. For more on open educational resources (OER) this week, check out the Association of College & Research Libraries (ACRL) webinar, “Foundations of OER, on Wednesday, February 24. And don’t miss the Canadian Association of Research Libraries (CARL) webinar, “Implementing the CARL Copyright OER for University Instructors and Staff on Campus,” on Thursday, February 25.

Accessibility

HathiTrust Digital Library is a prominent example of the benefits to libraries and society from courts deciding in favor of fair use in technology cases. Hathi relies on fair use for two key functions: (1) providing accessible texts for people who are print-disabled and (2) allowing access to a database of scanned books that can be used for nonconsumptive purposes like text and data mining. In determining that providing access to works for people with print disabilities is a fair use, courts cited the rationale behind the Americans with Disabilities Act, and the legislative history of the Copyright Act itself.

Explosion of Creativity

During the pandemic, we have seen a proliferation of online creativity, sharing, and access, such as art museums offering virtual access, online performances, or the ubiquitous Bernie mittens meme. Noncommercial expressions of creativity like these rely on fair use. Read this blog post, “Copyright for Meme-Makers,” by our colleagues at Public Knowledge, then apply the four-part test to the Bernie meme. Based on your analysis, is it fair use? Why or why not?

Fair use is intentionally flexible to respond to new technologies and ways of working. But it’s important to note that these activities were all possible even before COVID-19. Fair use is meant to be used, and we hope this post illustrates its necessity.

Fair Use in South Africa

*This guest blog post by Jonathan Band, policybandwidth and counsel to the Library Copyright Alliance, is cross posted from ARL Policy Notes.*

 

The United States Trade Representative (USTR) is reviewing the eligibility of South Africa (SA) for trade preferences because the SA Parliament has passed a Copyright Amendment Bill (CAB) that the International Intellectual Property Alliance (IIPA) claims will result in inadequate and ineffective protection of copyright in SA. The IIPA consists of US-based copyright associations such as the Motion Picture Association, the Recording Industry Association of America, and the Association of American Publishers. While IIPA raises numerous objections to the CAB, the focus of IIPA’s opposition is that the CAB adopts a US-style fair use right.

IIPA generally urges USTR to pressure foreign governments to adopt US copyright principles. IIPA, however, has consistently opposed the export of fair use. To be sure, IIPA members routinely rely on fair use when sued for infringement in the United States. The IIPA petition, therefore, sets forth justifications for opposing SA’s adoption of a central feature of US copyright law. These justifications have no merit.

First, IIPA states that the CAB creates a “hybrid” system combining a flexible fair use provision with specific exceptions. But that is exactly what US law does, as well as every other country that has fair use. For example, the US Copyright Act combines fair use with specific exceptions for libraries and archives (section 108); educational institutions, religious organizations, and small restaurants (section 110); users of computer programs (section 117); and authorized entities that provide services for people with print disabilities (sections 121 and 121A).

Second, IIPA complains that SA lacks the legal precedent—established over decades—that has served to define, refine, and qualify that doctrine in the United States. Under this reasoning, no country could ever adopt fair use. Moreover, via the internet, judges in SA would have easy access to hundreds of fair use decisions in the United States, as well as the opinions by judges in the other jurisdictions that have fair use exceptions. Indeed, SA judges can rely upon online tools such as the US Copyright Office’s Fair Use Index, which contains a searchable database of summaries of hundreds of fair use decisions. The Copyright Office explains, “The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public,” thereby directly addressing IIPA’s concerns. (In the introduction to its Fair Use Index, the Copyright Office notes, “Fair use is a longstanding and vital aspect of American copyright law.”)

Third, IIPA argues that SA does not have statutory damages, which copyright owners in the United States rely upon to deter and remedy infringement. The link between exceptions and remedies is unclear. Regardless, SA does allow the award of “additional damages” in cases of flagrant infringement. Additionally, SA follows the “English rule” for the award of attorney’s fees. Under the English rule, the prevailing party automatically recovers attorney’s fees. The English rule strongly discourages a defendant from pursuing a defense unless it has a high degree of confidence it would prevail. This would insure that defendants would not assert fair use frivolously.

On January 30, 2020, USTR held a hearing on IIPA’s petition (PDF), at which the Library Copyright Alliance (LCA), of which ARL is a member, testified in favor of maintaining trade preferences for SA. Additionally, LCA is submitting a post-hearing brief at the end of this week. The withholding of trade preferences could harm the SA economy by disrupting SA exports to the United States.

Other countries in Africa, and elsewhere in the developing world, are looking to see how this story ends. The CAB could become a model for progressive copyright legislation; or it could be a cautionary tale of what happens when a developing country tries to “step out of line.”