Welcome to the 2^nd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  This entire week we will be celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panel on Thursday, February 26^th.

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  

 

“Copyright, Fair Use, and a Touch of Aristotle”

 

Ponder this overlooked principle of copyright:  Fair use abhors a vacuum.

Commentary and events about fair use justly abound, but fair use does not exist in isolation.  It is not compressed into one celebrated week.  It never stands alone.  And it is integral to the functioning of copyright law.  Fair use responds to changing demands, and by its nature fair use is pulled into the deep uncertainty brought on by expanding innovation.

Start with copyright’s basic premise.  Copyright is fundamentally a system of legal rights, granted initially to authors, authorizing control of certain uses of creative works.  The basic legal rights are familiar.  Copyright owners have rights of reproduction and distribution of copies; rights to make derivatives or adaptions; and rights to make public displays and performances.  For some works, moral rights also apply.

The rights of copyright owners are far from absolute.  They are subject to a variety of conditions and limitations, starting with the fact that copyrights expire, allowing works to enter the public domain.  Copyrights may last for many decades, but the eventual expiration of copyrights is essential to the central purpose of the law: To encourage creativity.  By granting rights, the law encourages authors to create new works.  By assuring a public domain, the law boosts the next generation of creative ventures.

Copyrights are also limited by a long list of statutory exceptions.  The public domain is broad, but it can be far in the future.  By contrast, exceptions apply from the outset of the copyright, but they are of narrow scope.  Fair use is one such exception.  Fair use permits all of us to make uses of copyrighted works, but only within the framework of the four factors in the statute.  The meaning of the factors is wide open to debate, but they ultimately set parameters on the amount, purpose, and other conditions for proper use.

What about that vacuum, you ask?  Already we can see two ways that fair use and vacuums don’t jibe.  First, fair use does not live alone.  It is one of many statutory exceptions.  The U.S. Copyright Act has exceptions for teaching, libraries, services for the blind, music recordings, satellite transmissions, and more.  Indeed, a proper evaluation of fair use often means looking first for a specific statute that might meet your needs.

Fair use is also not in a vacuum for a more conceptual reason.  Fair use may be about public rights, but its significance derives from private rights.  The law grants private rights to authors for the benefit of private parties, but also for a public benefit.  All members of the public benefit if we are motivated to craft new artworks, formulate new software, compose new music, or roll out imaginative novels and movies.  At the same time, many of these new works build upon previous copyrights.  By allowing fair use of works that came before, and of our new works, the law is sanctioning the building block of further aesthetics, storytelling, computer innovations, and even parody.   Fair use is an essential complement to the rights of owners, and it completes the circle of creative incentives.

Finally, fair use abhors a vacuum as a byproduct of its inherent versatility.  Fair use is the go-to statute for creative exploits.  Congress deliberately devised a fair-use law that could apply to all media, all types of works, and all innovative pursuits.  It clearly establish limits on amount, purpose, and other conditions, but fair use at least allows some degree of use as we experiment with unanticipated technologies, formats, and objectives.

Only recently have courts told us that fair use allows low-resolution images in a study of music history, or permits storage of digital books for research indexing and access for the blind.  Courts have resolved that posting videos on YouTube for public criticism may be allowed.   Using a politician’s photograph for political commentary can be fair use, and so can the use of video clips from commercial broadcasters, especially when the selections are limited and the purpose is to facilitate political and social critiques.

As the media and substance of creativity expands, so does the reach of fair use.  The outer boundaries of technology are accelerating swiftly away from copyright’s familiar home.  As innovation open up vast areas of untested space, so will fair use be absorbed into the new realm.  The new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.  Without fair use we would have no troves of digitized research collections from Universities, and we would be denied the biting insights that pour forth from South Park or The Daily Show.

The human drive for innovation will always grasp new opportunities that emerge with technological expansion.  Because fair use is flexible, it is able to be drawn into the vacuum of that new space.  Because fair use is integral to copyright in general, when it melds into the vastness of innovation it also helps protect rights, encourage authors, and promote the progress of public and private interests.

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Kenneth D. Crews is an attorney with Gipson Hoffman & Pancione in Los Angeles.  He founded the first copyright center at any university, based at Indiana University.  He also established the copyright center at Columbia University and continues to serve on the faculty of Columbia Law School and the Munich Intellectual Property Center.  He is the author of Copyright Law for Librarians & Educators: Creative Strategies & Practical Solutions (3^rd ed., 2012).