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The official Fair Use logo ^[1]

Fair use ^[2] is an exception to copyright law that is completely determined through a case by case basis, though there are guidelines set up to determine whether use is/should be an exception. Under copyright law, any work of literature, art, or intellectual property is protected from outside replication. Fair use allows for the reproduction of these properties without express permission of the author as long as the intention behind the reproduction is beneficial for academic learning and not for personal profit or gain. There are some organizations, such as Creative Commons, that use the copyright laws but encourage reproduction of their work within certain guidelines.

The essence of fair use is to create a balance between an original copyright owner and society’s need for intellectual sharing.^[3] The doctrine of the fair use statute provides limiting circumstances to use an original piece of literature, art, or other intellectual property for intellectual gain, without personal or profitable gain.

Fair use cases are independent and evaluated differently from another. There are set guidelines that allow for the judging of whether or not fair use is applicable to each case. There is not one clear-cut definition of fair use -- there is only the possibility of judging whether a work is “fair” under the four factor test.

Furthermore, according to Kerrie L. Carsey of Miami University, explained that “fair use protects users of copyrighted material, acting as a safety valve to prevent the complete control of information, which would otherwise amount to a form of private censorship”. This definition provides the beginning of a clear description to determine the balance between fair use and abuse of copyright materials.

With the prevalence of digital rhetoric and literacy, it is important to understand the difference between fair use and plagiarism on the internet. The four factor test has been created in order to determine whether or not using material is within the fair use guidelines or an act of plagiarism.

History of Fair Use

Fair use originally started out as a judicial decision, however it is now recognized under the Copyright Law. The original case regarding the concept of fair use was between Lawrence vs. Dana in 1869. After persistent work on two volumes of Wheaton’s Elements of International Law, including research on the topic, the judge ultimately declared that Lawrence was not used fairly. In fact, it was declared as a reprint of the original work.

Fair use became more prevalent in court cases as continuous sources of information was released. The invention of the photocopier, telegraph, telephone, and the eventual invention of cassettes, records and televisions proved to create significant fair use disrupt. It was not until the Copyright Act of 1976 that fair use was addressed.^[4] Signed on October 19, 1976, President Gerald R. Ford brought the Copyright Act of 1976 into effect. Within this act, the concept of fair use was addressed in Title 17, section 106. Under Title 17, section 106, there are five original rights for copyright owners, with a sixth right added in 1995. The four factor guidelines are then to be taken into account from the six rights.

Fair Use on the Internet

The Fair Use Project

In 2006, the Fair Use Project was established by the Stanford Law School. The FUP provides full legal support to content creators throughout all digital platforms to protect copyrighted work. It is the only organization in the country to provide free legal representation to such artists. This program was founded as a collaboration with Stanford’s Center for Internet and Society, a public interest technology and law policy program at Stanford Law School.^[5] The Center for Internet and Society’s (CIS) primary purpose is to encourage digital writers to use technology and the law together to promote the values of democracy.

A Copyright Manifesto

The Digirhet writers of Michigan State University published A Copyright Manifesto as a set of guidelines for digital writers. These guidelines are established on three tenets of belief:

• Blame in terms of intellectual property law is based on outdated beliefs. With this in mind digital writers must become copyright activists, and striving for access to creative work to remain open, yet protected.
• All knowledge is cumulative, and current intellectual property laws hinder the natural expansion and growth of multimodal knowledge.
• Not only should credit be attributed, but digital writers/designers should be taking an active role in the intellectual property of their work during the creative process, not simply at completion.

The guidelines stated in A Copyright Manifesto is as follows:

1. Digital Writers must take an active role in their creations: by understanding copyright, Creative Commons, etc.
2. Sources must be attributed at all possible, and all repeated information must comply with the Fair Use Doctrine
3. Digital writers are responsible for making sure other digital writers are aware of media laws and copyright infringement
4. Writers must engage in digital legislation, whether it be through digital legislative communities or communicating with an elected official themselves.
5. Digital Writers/Designers should create and be involved in other digital creative communities as to create a relationship of support.
6. Digital Writers must exercise their own creativity constantly in order to minimize instances where they will be accused of violating copyright.
7. In compliance with the above statement, digital writers should never partake in active and willful stealing of information or content.^[6]

Court Cases

Kelly v. Arriba Soft Corporation

Kelly v. Arriba Soft Corporation occurred in 2002, involving a commercial photographer and a search engine company. Kelly, the plaintiff, sued Arriba Soft (defendant) for copyright infringement for using thumbnail sizes images produced by Kelly on their new search engine program. Though Kelly sold images to Arriba Soft, he did not utilize permission for thumbnails to be used on Arriba search engine platforms. The United States District Court of California ruled that thumbnails did infringe Kelly’s copyright, but fair use permitted Arriba to use thumbnails in the image index. The court upheld the right by search engines to display thumbnail copies of images in their index. The analysis of the case was released in July 2003. ^[7] Comparing the case to the four factors of Fair Use, the district court ruled that two weigh in favor of Arriba, one is neutral, and one weighs for Kelly (“Nature of the Copyrighted Work”).

Lenz v. Universal Music Corporation

Lenz v. Universal Music Corporation occurred in 2007, settling the argument as to whether or not copyright holders must consider fair use before removing content posted to the Internet. Stephanie Lentz (plaintiff), uploaded a video to YouTube of her children dancing to Prince’s song “Let’s Get Crazy.” Universal Music Corporation (defendant) sent a message to YouTube requesting that the video be taken off, claiming that it violated their copyright in compliance with the Digital Millenium Copyright Act (or DMCA). Lentz sued Universal Music for not considering fair use and misrepresenting information of the DMCA. During September 2007, both Prince and Universal released statements that Prince would be “reclaiming his art,” and that all user-generated content involving Prince would be removed from the Internet. Lentz argued that Universal was removing content in “bad faith” and not considering the fair use doctrine in their decision. The district court eventually ruled that copyright owners must consider fair use before issuing content removal in accordance with DMCA policies.^[8]

Legislation Associated with Fair Use

Fair use is referred to as a doctrine, not a law. Being a doctrine means that rulings on this issue are made using other legislation pertaining to the topic of copyrighting.

The doctrine of fair use is not a law by itself, but it is incorporated into multiple other pieces of legislation pertaining to copyright. Below are some of the laws and acts that are used when making cases about fair use.

US Copyright Law

The United States passed the Copyright Act in 1976. This act prevents the unauthorized replication of a work. The copyright only covers the exact replication of a work; the ideas held within the work are not protected. Because of the copyright act, any author or creator is not required to have to register with the copyright office or put a seal on their work; it is automatically protected.

Protection under the copyright law applies to published and unpublished works. These works include any kind of intellectual property such as music, art, literature, etc.

Within the copyright act, there is a provision for the doctrine of fair use in Section 107.

Fair Use - Section 107

Section 107 of the copyright act gives the conditions under which a reproduction of a work is able to be used without gaining permission first. This exemption can be used by teachers and professionals alike to share information and knowledge with peers and students without using valuable time to get permission to share the information.

There are four factors that influence the decision as to whether or not a piece is being used fairly. The factors are:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

All of these factors must be taken into consideration when using another person's works. There is a lot of freedom within the parameters of fair use for property to be redistributed, but because of that freedom the lines guarding the copyright are also a little blurred.

The University System of Georgia provides a Fair Use Checklist for students in order to make sure that the academic work produced complies with fair use laws. This checklist ensures that all work meets the four pillars of fair use; if the work does not meet the acceptable standards then it is not eligible for submission. The Fair Use Checklist is based through the Copyright Advisory Office at Columbia University’s Fair Use Checklist

Technology, Education, and Copyright Harmonization Act (TEACH Act)

The Technology, Education, and Copyright Harmonization Act (TEACH Act) is an Act of the United States Congress passed on November 2, 2002 that allows accredited nonprofit educational institutions in United States to use a reasonable amount of copyrighted materials in a face-to-face classroom setting without the need to obtain permission of the copyright holders. The TEACH Act amended sections 110(2) and 112(f) of the U.S. Copyright Act to provide more guidance on how to determine if the usage of certain copyrighted materials is justified, including in unconventional teaching settings such as online distance learning. Though the TEACH Act does not supercede the Fair Use doctrine, it shares a similar concept with the latter in that it seeks to establish an equilibrium between protecting the rights of copyright holders and warranting the legal freedom of educators.

The TEACH Act permits educators to use nondramatic works such as poetry, short stories, all kinds of music except opera, still images and reasonable portions of other works for teaching purposes as long as they give due credit to the creators of the works. ^[9] However, electronic resources, digital textbooks and unlawfully acquired materials are not included in the permissible categories because of their potential to reduce the income of copyright owners, thereby limiting their resources to produce creative works in the future. ^[10]

According to the Copyright Clearance Center ^[11], the TEACH Act includes other requirements for the use of copyrighted materials, such as:

• The use must be part of mediated instructional activities.
• The use must be limited to a specific number of students enrolled in a specific class.
• The use must either be for ‘live’ or asynchronous class sessions.
• The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
• The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.

Thus the TEACH Act gives educators assurance of legal justification when using copyrighted materials, and in the meanwhile protects the intellectual property of creators to an extent.

Digital Millennium Copyright Act

The Digital Millennium Copyright Act ^[12] was passed in 1998 by President Bill Clinton as an amendment to the Copyright Act focusing on bringing copyright into the digital realm. It gave heavier penalties for copyright infringement on the internet along with criminalizing measures taken to obtain copyrighted work on the web without proper permission. The DMCA implements two different treaties created in 1996 by the World intellectual Property Organization (WIPO). The treaties included are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Criticism of Fair Use

Though instituted to ‘‘promote the progress of Science and useful Arts’’ (US Constitution, Article 1, Section 8), Fair Use and copyright are often associated with cultural privatization. Critics are quick to point out the requisite legal barriers involved in instituting intellectual property laws as a limitation to the democratic use of culture, blocking the free flow of information by restricting the freedom of speech. ^[13]

To illustrate this irony, social critics and scholars have initiated various parks exploiting the contradictory barriers set by the Fair Use doctrine. In 1998, Kembrew McLoed was granted ownership of the phrase “Freedom of Expression” by the United States Patent and Trademark Office, under the serial number #75235164. McLeod and her attorney attempted to take telecommunications giant AT&T to court after seeing a newspaper advertisement featuring the phrase without her consent. Though AT&T refused to acknowledge her cease and desist letter, the potential lawsuit received a substantial amount of media coverage and illustrates the ironic nature of Fair Use and intellectual property laws hindering cultural expression. ^[14]

External Links

1. The Fair Use Project: Copyright and Fair Use
2. Columbia University Copyright Advisory Office: Fair Use Checklist
3. Bound By Law

References

1. "About the Fair Use." U.S. Copyright Fair Use Index. U.S. Copyright Office. <http://www.copyright.gov/fls/fl102.html>
2. "Center for Internet and Society | Stanford Law School." Stanford Law School. <https://law.stanford.edu/center-for-internet-and-society/>
3. Carsey, Kerrie L. Review of Copyright Clarity: How Fair Use Supports Digital Learning. <https://www.uc.edu/content/dam/uc/journals/composition-studies/docs/bookreviews/39-1/Carsey_Hobbs%20review.pdf>
4. "IANAL: “I Am Not A Lawyer.”." Old Old Old = New Preface. Kairos.<http://kairos.technorhetoric.net/12.3/topoi/digirhet/index.html>
5. Marley, Judith L. “Guidelines Favoring Fair Use: An Analysis of Legal Interpretations Affecting Higher Education”. The Journal of Academic Librarianship. August 1999.
6. United States District Court: Central District of California. <http://web.archive.org/web/20070928222214/http://netcopyrightlaw.com/pdf/kellyvarribasoftjudgement03182004.pdf>
7. United States District Court: Northern District of California, San Jose Division. <https://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf>
8. The Digital Millennium Act of 1998. U.S.Copyright Office Summary. <http://www.copyright.gov/legislation/dmca.pdf>

1. Crews, Kenneth D.. “Copyright and Distance Education: Making Sense of the TEACH Act”. Change 35.6 (2003): 34–39.
2. Lyons, G. Margaret. “Open Access is Almost Here: Navigating Through Copyright, Fair Use, and the TEACH Act”. The Journal of Continuing Education in Nursing, 41.2 (2010): 61.
3. “The Campus Guide to Copyright Compliance.” Copyright basics: The TEACH Act. Copyright Clearance Center. <https://www.copyright.com/Services/copyrightoncampus/basics/teach.html>
4. McLeod, Kembrew. "Intellectual Property Law, Freedom of Expression, and the Web." Electronic Book

Review (2003): n. pag. Open Humanities Press. Web. 27 Nov. 2015.

1. Rife, Martine Courant. "The Fair Use Doctrine: History, Application, and Implications for (new Media)

Writing Teachers." Computers and Composition 24.2 (2007): 154-78. Elsevier. 27 Nov. 2015.

Notes

1. ↑ https://thebookoftrev.files.wordpress.com/2015/11/fair-use.png
2. ↑ http://www.copyright.gov/fls/fl102.html
3. ↑ https://www.uc.edu/content/dam/uc/journals/composition-studies/docs/bookreviews/39-1/Carsey_Hobbs%20review.pdf
4. ↑ https://www.researchgate.net/publication/223127151_Guidelines_Favoring_Fair_Use_An_Analysis_of_Legal_Interpretations_Affecting_Higher_Education
5. ↑ https://www.law.stanford.edu/organizations/programs-and-centers/center-for-internet-and-society
6. ↑ http://kairos.technorhetoric.net/12.3/topoi/digirhet/index.html
7. ↑ http://web.archive.org/web/20070928222214/http://netcopyrightlaw.com/pdf/kellyvarribasoftjudgement03182004.pdf
8. ↑ https://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf
9. ↑ http://www.jstor.org/stable/40177252?seq=1#page_scan_tab_contents
10. ↑ http://eds.b.ebscohost.com/eds/pdfviewer/pdfviewer?sid=1b51df88-e903-4b56-820c-81b8bf2307af%40sessionmgr111&vid=16&hid=120
11. ↑ https://www.copyright.com/Services/copyrightoncampus/basics/teach.html
12. ↑ http://www.copyright.gov/legislation/dmca.pdf
13. ↑ http://eds.b.ebscohost.com/eds/command/detail?sid=dd0c7cce-28c0-47c6-add0-ab4291a25010%40sessionmgr115&vid=5&hid=112
14. ↑ http://www.electronicbookreview.com/thread/technocapitalism/proprietary