For our third expert post this week, we are delighted to welcome Kenneth D. Crews. Crews is an internationally recognized expert on copyright, libraries, and fair use. He is currently Of Counsel to Gipson Hoffman & Pancione in Los Angeles, California, and an adjunct professor in the Columbia Law School in New York.
The Expanding Importance of Fair Use: Virtues and Dimensions for Future Needs
It seemed common not long ago for some critics to predict the demise of fair use. Fair use was reviled as obsolete. It was hopelessly obtuse and reserved for scoundrels who needed a last resort for salvation from infringement claims. Even its advocates foresaw a dwindling role for fair use as licensing and pay-per-use mechanisms would become more prevalent. Balderdash.
The doctrine has never been as strong, versatile, and essential as it is today. Fair use is of greater importance now than ever before. It is a mainstay of creativity, and it is called upon by artists, publishers, Internet services, and players from a multitude of industries and perspectives. Fair use has been at the center of debates involving derivative artworks, classroom readings, and mass digitization of millions of books. In cases before U.S. courts in recent years, fair use has been asserted by creative artists and attacked by others. Fair use has been claimed by publishers developing new books, and asserted by educators to share portions of copyrighted books for education. Fair use has been preserved as a legal strategy when needed, and it has been deployed as a business model for creative industries.
Fair use, of course, always has been a legal principle, and it is built on an interpretation and application of the four factors in the statute. Two very general developments are happening on that foundation: First, the law is being called upon to serve a wider variety of needs and circumstances; second, the resulting legal experiments with fair use are opening some welcome creative and economic opportunities with widespread benefits.
The escalating significance of fair use can be measured in multiple dimensions, from the legal definition to geographic outreach.
Geography
Fair use is a distinctly American doctrine in many respects. It has some distant roots in British law, but it was coalesced in rulings from U.S. courts, starting in 1841 [PDF]. It became part of the U.S. copyright statutes in 1976. While nearly every country has copyright exceptions of some form, fair use remained exclusively in the U.S. domain until just the last several years. Other countries have discovered the compelling virtue of a flexible doctrine to serve unanticipated needs. Occasionally, non-U.S. courts have devised creative doctrines, but those countries still lack the true benefits of fair use. In recent years, several countries actually have introduced a four-factor test that is nearly identical to the American statute. Fair use and similar doctrines are finding a home outside the United States in the laws of countries such as Israel, Korea, Singapore, and the Philippines (see Library Copyright Alliance, “How Flexibility Supports the Goals of Copyright Law: Fair Use and the US Library Experience” [PDF] p. 15)
Scope of Works and Media
Fair use never has been limited to certain types of works, but the early cases were typically about books and occasionally music. New waves of cases have tested fair use for art, photography, advertising, motion pictures, and even Barbie dolls. Cases have begun to define the parameters of fair use for digital technologies, software, databases, search engines, and much more.
Flexibility
Fair use also never has been limited to certain contexts. It has substantive limits, but no boundaries of circumstance. Fair use is ready to be tested as new technologies, new media, and new demands arise. As the challenge of orphan works and mass digitization expand, fair use is ready as a resource for potentially alleviating some of the legal tension. Fair use may not be the panacea, but it will always have a place in solving new copyright dilemmas and assuaging the interface between protection and innovation.
Relationship to other exceptions
A mainstay virtue of fair use is its independence of the other copyright exceptions. The U.S. Copyright Act has more than fifteen statutory provisions that detail specific exceptions. Regardless, fair use still applies. If the provision on distance learning (Section 110(2)), for example, does not fit your needs, you still have the opportunity to test whether fair use might help. Fair use is a separate and independent element of the overall equation in copyright that establishes rights of owners and tempers them with limits. The same could be said about defining the public domain or simply seeking permissions from rightsholders. Fair use is one of the alternatives for properly using works created by others.
Support for Creativity
Fair use may be a limit on the rights of copyright owners, but it is a critical boost for innovation and creativity. It enables the next generation of talent to utilize and build on the creative works that came before. It empowers each of us with an opportunity and a responsibility to engage with copyrighted works in a reasonable manner that may ultimately have social benefit. New artwork can be built on existing materials. Critical studies of film, painting, and literature can reproduce quotations and images to convey new insights. Digitized text can be used to engage students in the classroom, to build search tools, and to reach readers with diverse forms of print disabilities.
Establishment of a Business Model
Fair use as a legal principle is conventionally cited as a defense. But it is increasingly a basis for business modeling and strategic planning long before a legal challenge can arise. Musicians are deciding (OK, probably with their lawyers in the room) whether to release a song that samples or derives from another. Artists are routinely building on the works of others. Book and newspaper publishers regularly decide whether to reproduce photographs and quotations. Software developers rely on existing code. Universities and libraries design and implement services for education and research based on policy planning about fair use. Some of the largest companies in the world develop innovative search tools and other online services that inherently depend on a strategically constructed definition of fair use. Whether the ultimate objective is cultural growth, scholarly research, or corporate profit, the strategy is the same: Is this activity within our best understanding of fair use, and are we prepared to move forward with our model and strategy despite potential conflict from the legal ecosystem?
Filling Volumes
Writings about fair use today fill volumes. That fact alone is a testament to the growing significance of fair use. It is a compelling doctrine. It is a source of rich debate and wondrous versatility. It remains viewed as grounds for theft and a foundation for innovation. One can also debate whether some of the newest court ruling actually have expanded or contracted the scope of the law. Regardless, the latest developments at home and abroad are underscoring that fair use is, or always has been, ready to find meaning for new uses, new media, and new plans and models. Even if fair use is fundamentally unchanged, it simply has found new prominence as the entire system of copyright law expands to reach new horizons of possibilities.
Kenneth D. Crews is Of Counsel to Gipson Hoffman & Pancione in Los Angeles, California, and is an adjunct professor in the Columbia Law School in New York. He is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (3rd edition, 2012). The views expressed here are his own. You can contact him at kcrews107@outlook.com and on Twitter.