Is using someone else’s copyrighted work always unlawful? Absolutely not. There are many circumstances where reproducing someone else’s copyrighted work is fair – more specifically, “fair use.” Examples of fair use include providing commentary, news reporting, academic research and scholarship, and even search engine interaction with copyrighted content.
Academic libraries across the United States and Canada are celebrating Fair Use/Fair Dealing Week 2017 this third full week of February. How will you be taking part in the celebration?
We at UCLA Library will be literally rocking out to a fair use performance of video game music as we close out our week of programs educating our community about the critically important role of fair use. Read on to learn more about fair use and how we have worked to plan these Fair Use Week events.
Fair use is an important legal doctrine that supports the reuse of copyright protected material and has shaped the evolution of U.S. copyright law by helping to balance creator rights with content user rights. What fair use detractors might dismiss as a minor exception or a narrow defense is in fact a right explicitly recognized by the Copyright Act, and recognized by the Supreme Court as a “First Amendment Safeguard.). (See this infographic from the Association of Research Libraries.). Before we go into further detail about fair use, a bit of explanation about U.S. copyright is probably in order. If you’re already a copyright & fair use expert, you can skip to the final section about how we plan fair use events to engage and inform our community.
The words “Copyright,” “All Rights Reserved,” and the © symbol literally mark many of the fixed mediums of our mixed media existence, though such markings have grown less common since the notices were made optional after March 1, 1989, with copyright attaching automatically to original works since. Copyright was considered so important by the Framers of the Constitution that the United States became the first nation to have a constitutional basis for copyright law in 1787.
While often used in the singular, “copyright” actually represents a bundle of multiple rights granted to the creator of an original work, with the most obvious of these being the right to produce a literal copy of the original. Other included rights that are not as immediately apparent include the right to produce derivative works (think: translations, sequels, merchandising based off the original creation, etc.), to distribute the work, to perform publicly (i.e. a play or song, etc.), to publicly display the work, and to broadcast digitally over the radio.
Put simply, copyright is a type of property right that gives the creator a monopoly, for a limited time, in order to profit from the creation. Today, copyright is grouped into a category known as “intellectual property” that also includes patents, trade secrets, and trademarks — other areas where the law also grants owners a limited monopoly to profit. Like physical property, the owner of the copyright can choose to license or sell any, all, or none of these copyrights to single or multiple parties.
Technology, Flexibility, and Fair Use
It is now far easier to create and distribute copies of original works (both one’s own and those produced by others) than when copyright protection was first envisioned. Much has changed since 1787, and copyright law has ambled along the way to strike a balance between creator and content user. See “Copyright Timeline: A History of Copyright in the United States” for an outline of important landmarks.
Fair use does much of the heavy lifting in keeping copyright law workable in the face of constantly evolving technology. The Fair Use Doctrine, the focus of much-deserved celebration during its namesake week, emerged in the 1841 Folsom v. Marsh case (some fifty-odd years after the establishment of copyright), where Judge Joseph Story originally set forth the four factors of fair use that later came to be incorporated in the Copyright Act of 1976. Those four factors are:
- Purpose and character of the use
- Nature of the copyrighted work
- Amount and substantiality used
- Effect upon work’s value
By balancing these factors while keeping in mind the key purpose of fair use (to protect such activities as criticism, news reporting, and teaching), courts can apply fair use to new technology as it arises, rather than waiting for congress to write specific new provisions of law. Thanks to the flexibility afforded by fair use, we can have technologically emergent and socially beneficial projects that build on copyrighted works, like image searching, electronic course reserves, and digital library collections.
To make a fair use evaluation of a work under the terms of the four factors, visit the American Library Association’s Fair Use Evaluator.
To read more about fair use in general:
- Visit the Association of Research Libraries (ARL) page on Fair Use;
- Read the ARL best practices guide for libraries using copyrighted content;
- Check out some of the other codes of best practice in fair use, like the ones for journalism, online video, poetry, or using images for teaching, research, and study;
- And if dueling professorial action piques your interest, visit the Fair Use Week blog of our friends at Harvard for more of the inside story on the history of the Folsom v. Marsh case.
Now back to celebrating Fair Use!
At UCLA Library, we consider fair use an indispensable part of the scholar/researcher’s toolkit, and every citizen should exercise their right to fair use to drive forward the cultural, scholarly, and political dialogue. Past iterations of our Fair Use Week celebrations have included buttons, postcards, presentations, and workshops to reach different members of our campus community. In planning programming for Fair Use Week, Open Access Week, and the like, here are some points we consider:
- Audience: Who are you trying to reach with your programming?
As an academic library in a public university, we serve many different populations. While the temptation is strong to be all things to all people, the reality is that different populations respond to different messages. For instance, throughout the year, we work with the UCLA Graduate Division to educate our students about copyright and fair use concerns that they may encounter in preparing their dissertations and theses. Our conversations often involve discussions about including brief, published excepts or copyrighted images within a work, but a similar image reuse discussion would probably be framed differently if we were speaking to members of the community-at-large or if the setting were a public rather than an academic library.
- Message: What is the message that you are trying to communicate?
This year, our Fair Use Week programming aims to connect the legal concept with topics and themes that are part of our everyday lives by injecting a dose of FUN into the programming. With that focus in mind, we’ll be taking a look at fair use through a slightly different lens with the program “My Fair Homie: A Fair Use Journey Through the Simpsons.”
- Timing: Scheduling events can be difficult regardless of the size of your campus.
It’s important to know the needs of your campus and adjust accordingly. For instance, since Open Access Week usually falls during our midterms, our OA programming takes place throughout the entire academic year and is not relegated to just the third week in October. Luckily, Fair Use Week 2017 falls during Week 7 of our Winter Quarter, which tends to be a better time on our campus for scheduling open programming, so we have full lineup for the celebration.
- Collaboration: With whom can you connect on campus, in the community, or in scholarly circles to help spread your message?
This year, we are working with the Game Music Ensemble (GME) at UCLA and holding one of our events, “Rock Out Fair Use Week,” in the UCLA Music Library so that we can target a slightly different subset of our campus audience and connect with new users who might be familiar with GME but not frequent users of the Library.
- Budget: How do you do a lot with a little?
One of our Fair Use Week events this year involves airing the ACRL webcast, “Using Fair Use to Preserve and Share Disappearing Government Information.” An event that plugs into the existing resources of the scholarly community can help keep you connected and active without incurring a heavy financial commitment for programming support. This also ties into the previous collaboration bullet.
Whether this is your fourth year of participation in Fair Use Week or your first, we invite you to join us in increasing awareness of this important doctrine on your campus. Tell us: how are you celebrating Fair Use Week 2017?
Jennifer Chan is UCLA Library’s Scholarly Communication Librarian, and is part of their Scholarly Communication and Licensing unit. Follow them on Twitter @ScholCommUCLA. She is a current co-chair of the LITA Altmetrics and Digital Analytics Interest Group. Jennifer joined UCLA in May of 2016.