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The fair use doctrine raises complicated questions and yields few bright line answers. Perhaps the best brief description of fair use is that the doctrine solidifies that fact that the exclusive rights of the copyright owner are not unlimited in scope. Sections 107 through 122 of the Copyright Act establish limitations on these exclusive rights, and together these sections represent the doctrine of “fair use.” Most of the fair use provisions are highly specific exemptions from copyright liability that Congress has enacted to encourage, or at least to allow, certain behavior. These specific exemptions from liability can be found in Sections 108 through 122 of the Copyright Act.

The catch-all provision, which is the provision generally referenced in connection with the concept of “fair use,” is Section 107. This catch-all fair use provision specifically provides a safe harbor for what would otherwise be infringing activities if such activities are for the purpose of teaching, scholarship, and/or research. However, the Section 107 safe harbor is not as simple as the preamble to the section suggests. There are four factors (discussed below) that are considered in determining whether such uses are “fair” and not infringing, and these factors must be considered even if the use is for teaching, scholarship, and/or research purposes. Therefore, caution must be exercised to prevent overestimating the reach and protections afforded by Section 107.

The fact that the copyright owner enjoys “exclusive rights” should not be understood to mean that only the copyright owner may engage in the listed activities (i.e., copying, distributing, performing, etc.). The right of the copyright owner is exclusive in nature, but far from absolute. In determining whether the use in any particular case is fair use, courts must consider the four factors specifically listed in 17 U.S.C. § 107:

(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.

It is important to remember that giving generalized rules of thumb when dealing with fair use can be exceedingly difficult. For example, the Supreme Court held that the copying of less than 400 words from the memoirs of President Gerald Ford constituted copyright infringement and was not a fair use, while copying an entire copyrighted movie would be considered fair use if the copying was done for time shifting purposes (i.e., recording and watching at your convenience).

What can be safely said, however, is that academic uses that are educational and that are not commercial in nature, or commercial by disguise, are most likely going to be considered fair uses under 17 U.S.C. § 107, provided that there is not an adverse effect on the potential market for the work in question. This argument gains significant strength when the amount of the work that is taken is not significant in relation to the whole.

When discussing the importance of the amount taken, for example, the Supreme Court has focused on whether the quantity and value of the materials used was reasonable in relation to the purpose of the copying, paying particular attention to the fact that the extent of permissible copying will vary with the purpose and character of the use. So perhaps the best rule of thumb for the use of copyrighted material without permission is to use as little as possible and make sure you are not making money on the venture.

Before leaving the topic of fair use, it is perhaps also useful to understand the procedural relationship between fair use and infringement. It is important to always remember that fair use is an affirmative defense and, therefore, the defendant carries the burden of proof. The fact that fair use is an affirmative defense means there is never any real need to inquire whether a particular use is fair unless it is first determined that a copyright infringement has occurred. This last statement, however, while technically correct, may well be an oversimplification. To be sure, in order to reach the question of fair use, first a finding of copyright infringement must have been made. In practice, however, the defendant does and should always assert the defense of fair use even when the defendant is claiming no copyright infringement in the first instance. This is true because the defendant should never place all eggs in one basket, and when fair use is a possible defense it is, and must be, asserted, even while asserting the lack of an underlying infringement.

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