Fair Use Jurisprudence 2019–2021

By Jack Lerner, Luke Hartman, and Jordin Wilcher

Cross-posted at

We are excited to celebrate Fair Use Week with a new report from the UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic: Fair Use Jurisprudence 2019–2021: A Comprehensive Review. The report presents the results of an exhaustive study of recent fair use opinions issued by US federal courts in copyright infringement cases.

Copyright covers a huge range of expressive activity and is automatic. Just about anyone who wants to do more than read, watch, or use a work relies on the doctrine of fair use in order to avoid liability for copyright infringement. The US Supreme Court has referred to fair use as a sort of safety valve that provides breathing space allowing copyright to coexist with freedom of expression. And it is an evolving doctrine; disputes concerning fair use are constantly working their way through the American legal system, but the vast majority of cases don’t make the news despite their importance to creative expression and innovation.

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A Sample of Fair Use

By Sandra Aya Enimil

Music sampling has been, and is, a critical fixture and feature of hip-hop. Hip-hop is an amalgamation of music, music mixing, dance, graphic art, and a specific clothing aesthetic. Lovers of hip-hop music and copyright have followed and studied the impact of copyright law on the genre, particularly how hip-hop musical artists (MCs) have engaged fair use.

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photo of person looking through binoculars between two stacks of books

Online Copyright Education Offered by Columbia University Libraries and LYRASIS

In early February, Columbia University Libraries and LYRASIS launched the Virtual Copyright Education Center (VCEC) pilot project. With a stellar faculty drawn from experts in research libraries and museums, “the project will introduce new classes to enable cultural heritage professionals to move beyond a basic understanding of copyright. The project also includes business planning to develop a sustainable service model to enable continued training.”

Even with noticeable growth in the number of scholarly communications positions within the ARL community in the past decade, such positions—advising on issues like open access and copyright—are still less than 2 percent of the professional workforce within ARL. This project will help scale and level up highly specialized knowledge of copyright across research libraries. Librarians work with students and faculty to better understand copyright exemptions like the fair use doctrine that enable their research, teaching, and learning. Librarians will also help prepare campus communities for understanding challenges that might come through the new Copyright Claims Board via the CASE Act.

ARL welcomes this new educational initiative, with its first course, Copyright 101, launching for free during Fair Use Week 2021.

The Heart of Copyright Policy: Fair Dealing, an Indian Perspective

By Akshat Agrawal, Legal Researcher, Delhi High Court

“Knowledge must be allowed to be disseminated” stated the Indian Supreme Court, in Entertainment Network (India) Ltd. and Ors. v. Super Cassettes. Harping upon the idea of Anglo-Saxan Copyright, justified by the tenets of utilitarianism, the SC clearly emphasized upon the need to balance exclusivity-based incentives as against concerns of access, especially when concerned with knowledge resources. This was nothing new. Long back, prior to the partition of India, when the Imperial Copyright Act of 1914 was in force, during and due to the shackles of colonialism, the Lahore High Court (erstwhile India) harped upon the coloniality of the copyright doctrine, realizing the needs of the Indian citizens to be able to develop indigenous knowledge through access, more than anything else. The Lahore High Court, in 1934, in the judgment of Kartar Singh v. Ladha Singh, very convincingly determined the limits of incentives and the utilitarian purposes of the free market statutory intervention that is copyright, by stating that “Under the guise of Copyright, a Plaintiff cannot ask the court to close all the avenues of research and scholarship, and all frontiers of human knowledge.” What a remarkable decision!

Akshat Agrawal
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Essential Copyright Exceptions for Staff and Faculty

Red River College

You hear the term “Fair Dealing” and you may know we have a Fair Dealing Policy at RRC, but what does it mean? In this session will talk about how we evaluate what it means to be “Fair” when using copyright materials for teaching and instructions. In addition to our policy we will discuss methods such as the Six Factor fair dealing test, and we will explore the use of RRC’s Fair Dealing Tool to assist you in making sound copyright decisions

Dalhousie Fair Dealing Guidelines

Dalhousie University

Under the Copyright Act, express permission of the copyright owner is required before making copies or distributing works, with some exceptions. These guidelines outline the framework for operating under one of these exceptions – “fair dealing” for the purposes of research, private study, review, criticism or news reporting, education, parody and satire. These guidelines outline the limits and requirements for making paper and electronic copies of a portion of a published work by individuals for their own use, by faculty for use in their courses of study and by libraries for the use of their patrons.

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