FAIR USE: A RIGHT OR A PRIVILEGE?
Fair use is one of the most important issues in copyright especially for researchers, librarians, scholars and other users of copyrighted works. For many years copyright law experts and others have debated whether fair use is a right or a privilege. The answer is no clearer today than it was a century ago although the level of the debate certainly has increased. Several earlier columns have discussed fair use but none has looked at the historical basis of the concept. Fair use is a judically-created doctrine first used in the United States in 1841; through the years the concept was embedded in the common law, and it continued to be applied by judges in infringement cases although it was not embodied in the statute until 1976 . The 1976 Copyright Act adopted the fair use doctrine and the factors that courts had been using for determining whether or not a use was fair.
Fair use excuses conduct that ordinarily would be infringement, but because of the existence of certain factors, the conduct is exempted. The statute begins with examples of uses that ordinarily are fair use, but the list is neither exhaustive nor a guarantee. Instead, the courts say that the list is illustrative and simply provides some guidance on uses that have been found to be fair use although all such uses even for those purposes might not be excused. Then Section 107 lists four factors that courts must consider when determining whether a use is fair: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and sustantiality used in comparison to the work as a whole, and (4) effect on the potential market for or value of the work. A court applies the factors and makes a determination on a case-by-case basis. Scholarly and nonprofit educational use are favored over commercial ones, and uses that reproduce small portions of works are favored over those that copy entire works. Still, only a court can authoritatively determine whether a use is fair.
Publishers and producers of copyrighted works pretty uniformly claim that fair use is only a defense to copyright infringement and thus is no more than a privilege that users may exercise under certain conditions. Librarians and other users of copyrighted works disagree and believe that fair use is a right that users enjoy. The difference is pretty important.
The word “privilege” indicates that someone or some entity is granting a favor by enabling the person to take advantage of a benefit not available to all or relieves a person from having to meet the requirements for obtaining the benefit. It is an exception to a duty. Black’s Law Dictionary says that a privilege is also an affirmative defense in the law by which a defendant aknowledges at least a part of the conduct at issue but asserts that the conduct was sanctioned or authorized by law.
By contrast, a right is something that one has by law, nature or tradition; it is not dependent on being granted by someone else. Black’s Law Dictionary defines “a right” as something being due to a person by just claim, legal guarantee or moral principle. Further, a right is a legally recognized and protected principle.
Publishers and producers maintain that fair use is only a privilege and that users basically have no affirmative rights. To many members of this group, the only rights under copyright are those enumerated rights given to the owners of a copyright in Section 106 of the Act: the right to reproduce, distribute, adapt, publicly perform and publicly display a work, and for sound recordings, the right to perform them digitally. True, there are many exceptions to these exclusive rights embodied in the law, but beyond these exceptions, the four fair use factors are to be applied to determine whether a use should be excused. This group takes the position that there is no absolute right of public access to copyrighted materials. If fair use is only a defense to infringement, then literal copying, while a violation of the author’s exclusive right, is excused because of the public policy goal – that society benefits when one author builds on the works of another.
Not surprisingly, librarians disagree. In fact, in Section 108 of the Copyright Act, the library exemption, fair use is referred to right in the statute as a right. Nothing in this section “in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archves when it obtained a copy phonorecord in its collections.” Thus, the very words of the statute in the primary library section refers to fair use as a right. So, it is easy to see why librarians hold the notion that fair use is a right. This view focuses on the public policy goal as the key, and copying within fair use is not a violation to be excused but instead is a right that later authors have with respect to works that preceded them.
What does this mean for libraries for which the statute states that there is a right of fair use? Does this mean that copying by libraries is simply not a violation of the statute? Can libraries take positive action such as circumventing anti-circumvention technologies without fear of infringement? Likely not. Clearly, based on earlier litigation, it makes a difference if the library is in the for-profit sector, and nonprofit libraries have greater fair use rights (I use the “rights” word intentionally) than do those in the private sector. But even in the nonprofit sector, fair use has limits. Copying in libraries beyond that permitted in Section 108 is governed by fair use, and a court would examine the four statutory factors in evaluating that activity.
In recent years, the publisher and producer position seems to have enjoyed wider acceptance based on amendments to the copyright law and the results of various cases. Users’ rights activists have only recently begun to raise these issues and educate members of library associations and other organizations about the importance of how this disagreement plays out in statutory revisions and court decisions. That is why the Special Libraries Association must take a leading role, along with other library associations, in influencing the development of copyright law.