Fair Use Too Much or Too Little
This past Tuesday January 28, 2014, the House Judiciary Subcommittee on Court, Intellectual Property and the Interest held a hearing on the “Scope of Fair Use” that focused on whether Section 107 is working as intended by Congress and whether any legislative changes are needed. Below is Section 107 of the Copyright Law of the United States of America.
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(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 the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
At this hearing a number of witnesses explained their position. Professor. Peter Jaszi of American University took the position that although this section does not need reform, it could use support from the legislature. Professor June Besek of Columbia University took an opposing position explaining that fair use has undergone an extraordinary expansion in the past few years due to “the increasing significance of whether a work is transformative in the fair use factor test.”
According to Stanford University Libraries, “the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.” The four factors judges consider are: (1) the purpose and character of your use, (2) the nature of the copyrighted work, (3) the amount and substantially of the portion taken, and (4) the effect of the use upon the potential market.
According to Professor Besek, “the courts started to apply a functional transformation test to new works and uses, which resulted in new business models that exploit an existing work in a new work – without creating a new work.”
Another witness, Professor Naomi Novik, a writer for the Organization for Transformative Works, explained her position in regard to fan fiction stating, “fair use protects the continuum between remixes and works that stand on their own.” She went on to continue that licensing is not a practical solution for either users for author explaining that young users do not have the resources to go through these complicated licensing mechanisms.
Mr. David Lowery of University of Georgia focused on the music industry and indicated his concern for commercial sites passing off as fair uses. Many of these witnesses were addressing what exactly constitutes a transformative use. Again consulting Stanford Universities Libraries, “the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions: (1) Has the material you have taken from the original work been transformed by adding new expression or meaning and (2) Was value added to the original by creating new information, new aesthetics, new insights, and understandings?”
When all the panelists were asked whether they thought that fair use is working, many addressed that in some ways and for some forms of media it is working, but for others it is not. When they were asked whether fair use should be incorporated in free trade agreements, it was brought up that now would not be the right time because of the many cultural differences and the many different ways of how different countries approach the “freedoms” of free speech.
The subcommittee is planning to hold more meetings on copyright issues throughout the course of 2014.
Special thank you to Katrina Nicha for researching and writing this post!
 Katrina Nicha