For the last few months I was immersed in readings about Fair Use, hence last week’s reference to William Patry’s work. Today seems a good day to describe some of the thinking that went into codifying what eventually became Section 107 (Fair Use) within American copyright law.
In 1955, Congress began preparation for general revision of their copyright law (dated to 1909). Congress authorized a set of studies (thirty five were eventually completed and circulated) to investigate the problems related to copyright revision. Patry describes Study #14: Fair Use of Copyrighted Works (1958), by Alan Latman. Latman provided a comprehensive review of the theoretical bases for fair use together with case law, and went so far as to consider relevant foreign laws. He presented various options, including whether the provision should be introduced into statutory law and if so, should the doctrine be represented in general terms, with specific criteria, or address specific situations?
Nine copyright experts reviewed the Latman study with eight of the opinion that fair use should not be statutorily recognized. Patry writes:
Typical of the comments was that of Walter Derenberg: “I believe–and the Latman study seems to bear this out–that the term ‘fair use’ defies definition and that in the long run more would be accomplished if our courts would be entrusted with setting the outer limits of the doctrine as they have been under the Act of 1909.” (p.262).
Fast forwarding ahead, it was not until 1976 that the new copyright law was passed, and 1978 before it took effect. The Congressional reports of the day emphasize that the statutory recognition of of fair use was to “restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in anyway (quoted in Patry, p.414).” And the ‘judicial doctrine’ of the day, was predicated upon a multi-factor inquiry.
The final language of Section 107 emphasizes flexibility; it begins as:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [the multiple factors of inquiry**]
The bolding is my own addition. Patry writes that the terms “including” and “such as” are defined within U.S. law as “illustrative and not limitative.” A legislative report of the day identifies that the flexibility was deliberate:
The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to free the doctrine in the statute, especially during a period of rapid technological change (quoted in Patry, p.415).
What makes this period of history addedly interesting is that the deliberations about fair use were shaped by the advent of the photocopier.
** The multiple factors of inquiry have spawned legions of scholarship and debate … more to come another day.