Myths About Fair Use

August 2, 2011

Academics potentially enjoy some of the greatest benefits of U.S. copyright law’s doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. Now if only they knew they did. In Peter Jaszi’s and my research for Reclaiming Fair Use, which charts the resurgence of fair use and explains how to use it, we came across as much mythology as knowledge among our colleagues.

Academics employ fair use when they build slideshows for conference presentations; when they refer to the morning’s top news story in the lecture; when they write a review (even an unpublished one) quoting and commenting on a colleague’s work; when they ask experimental research subjects to react to a radio ad; and when they select an illustration for a point they make in a scholarly journal article or academic-press book.

Some of these uses are unconsidered; most are uncontested. But when the uses are questioned — usually by a publisher, or a librarian, or an IT person, and often because of new media and digital platforms — academics often lack the confidence to defend their choices, because they don’t know the law. Here are some of the most common myths we’ve encountered:

Myth #1: I don’t need fair use — educators have special privileges.

Reality: Educational uses have their own copyright exemptions, but those are extremely limited. Your classroom use may be covered, for instance — if your students aren’t Facebooking for class or posting assignments to YouTube -- but not your conference paper. So you’ll still need to employ fair use in many situations. You can refer to the mission and needs of your field to help you decide. There are already codes of best practices in fair use developed by film scholars, communication scholars, makers of open courseware, and media literacy teachers, for example. A librarians’ code is on the way (and then we’ll have a better handle on those pesky questions about video streaming and posting articles on Moodle). In some cases, educators have an easy time deciding how their uses are “transformative,” i.e., adding value and using the material for a different reason than the market currently serves (for instance, are students critically analyzing the content?). But if you’re using commercial materials explicitly designed for their educational environment, think twice — how is your use transformative?

Myth #2: Fair use is too unreliable to depend on -- it's all a judgment call.

Reality: Fair use is flexible, not unreliable. True, it’s a case-by-case decision, but so are all your other First Amendment rights. Yes, there are penalties for error, but those exist for libel, slander, obscenity, indecency and treason too. And are you finding any bright lines on, say, what exactly obscenity is?

What makes it easy to decide when there aren’t bright lines is knowing where common sense lies. The fair use doctrine is designed to be tailored to common usage, as is other First Amendment law. The doctrine only refers in general to four considerations ("factors") that people should weigh in deciding whether their use will add more to the culture than it will cost the rightsholder: the nature of the copyrighted material, the nature of the use, the amount, and the market effect.

In practice, since 1990 judges have boiled those concerns down to two: Is your use transformative? (In other words, did you add real value and did you employ this material for a different purpose from the one that the owner created it for?) Is the amount appropriate to satisfy that new purpose? If the answer to these questions is yes, the market effect concern takes a back seat. And judges look closely at community practice. That’s why codes of best practices in fair use have been so valuable in establish what is acceptable and normal to do in any professional community.

Myth #3: Fair use is easy for an academic — I can take whatever I want because everything I do is noncommercial.

Reality: Working noncommercially does give you some privileges, but you’ll be stuck in a gray zone if you depend on that to justify fair use. You won’t be able to circulate your work in academic journals (they carry ads) or books (even nonprofit publishing houses sell their books). Even when you contribute for free to online sites, somebody’s conducting commercial activity — perhaps an advertiser placing ads on a site, or a data miner. Noncommercial entities conduct commercial activities; Association for Research Libraries member libraries collectively spent over $1.3 billion on licensing and purchasing new materials in 2009-10. (A publishers’ lawsuit against Georgia State University is currently sounding some legal issues around libraries’ fair uses of these materials.) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim — if your use is transformative and an appropriate amount for that new purpose — this usually doesn’t matter much or at all. But simply not making money does not give you a fair use pass.

Myth #4: Fair use is too limited for me, because it’s useless when I publish or otherwise commercially market the work a fairly used item appears in.

Reality: Commerciality greases almost all circulation of culture in our society, and fair use is designed to expand the range of all cultural production, not just the noncommercial stuff. Almost all the (occasional) litigation on fair use has been over commercial uses, for a reason -- generally lawsuits aren't begun if there’s no money to be gained. And lawsuits since 1990 have typically been decided for fair users who have used work — commercially — in a transformative way and in appropriate amounts (even when that amount was, like it is in some photographic quotation, 100%!). Reassure your publishers that you can use that film still, magazine cover, advertisement or cartoon (if, of course, it’s in service of your scholarly argument, not a mere decoration), without licensing it. And be persistent; you may be the first academic they’ve met who knows your fair use rights.

Myth #5: Sure, fair use is on the books, but it’s too risky — even if I’m right, I could get sued.

Reality: Using your rights always means you take risks, though they may be minimal; all your First Amendment rights carry this risk. In fact, there is remarkably little litigation on fair use, although there is a lot of publicity around intellectual property conflicts generally. It’s easy to mix up the issues. For instance, the RIAA has sued a clutch of average-citizen file-sharers, who were simply exchanging materials they could have bought, for the same purpose as the market served. So they didn’t have strong fair use defenses, however misguided RIAA’s deterrent strategy may have been. Trademark and patent cases are often conflated with copyright cases. One recent lawsuit, in which a Harvard University research fellow downloaded thousands of academic articles, isn’t about copyright at all, but about hacking. Finally, don’t forget about perspective. Lawsuits are very occasional and circumscribed circumstances in a wide sea of perfectly legal and uncontested practice, most of it in the comfortable center of acceptability. For those hyper-rare fair-use lawsuits, a solid phalanx of pro bono lawyers waits eagerly in the wings to help, including Stanford Fair Use Project, the Electronic Frontier Foundation, and some intellectual property clinics.

Myth #6: Fair use is just a defense, not a right.

Reality: Fair use is one of those rights that comes into play once someone accuses you of infringement, and you say that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The overwhelming majority of fair use acts simply occur (every Stewart and Colbert episode!), without any fuss. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you defend yourself, and then the attacker accuses you of hurting them. That’s when you invoke your right of self-defense.

Myth #7: I don’t want fair use, because I believe educational materials should be free to all, and I license all my work under Creative Commons licenses.

Reality: It’s great if you want to share your work for free with others, and Creative Commons licenses, among other ways, help you to do that. Many academic research libraries encourage open-source repositories, and we contribute to those too. But even people who want to give their work away may need to quote copyrighted material. They can’t give other people’s work away. We’ll never not need fair use, because copyright ownership rights are so widely seen as valuable, and because all culture builds on existing culture — as every academic who wrote a lit review section in a journal article knows.

Bio

Patricia Aufderheideis University Professor in the School of Communicationat American University in Washington, D.C. and director of theCenter for Social Media there. She is the co-author, withPeter Jaszi, of Reclaiming Fair Use: How to Put Balance Back in Copyright, just published by the University of Chicago Press.

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