fair use denied — part II

For the first installment of this story involving Wildest Dreams and creativity-in-the-making, see Part I of fair use denied.

II. fair use — its origins and intentions

The contemporary bundle of rights comprising copyright is rooted in the customs of 16th century English publishing guilds. Their practices shaped what is often referred to as the first copyright act, the Statute of Anne. Entering into English law  in 1710[1], English colonies, of both loyalist and revolutionary tendencies, drew from the motherland when developing their own jurisprudence.

Eventually, the offshoot nations put their own stamp upon the system of copyright, including the exceptions within the system which  protect individual, unauthorized use of copyrighted works. While Commonwealth countries tended to maintain the English term and structure of fair dealing, in the United States, the exception evolved under the label of fair use.

Initially, fair use was applied only through common law practice; its genesis is usually attributed to Folsom v. Marsh (1841).[2] The dispute concerned two biographies of George Washington; in the process of adjudication Justice Story offered the following instruction to determine what is (or is not) fair use: “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[3]

This structure shaped fair use’s entry into American law in 1976.[4] Section 107 states:

… 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—

(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.[5]

The intent of the then-Congress was that fair use should retain the flexibility necessary to safeguard uses yet unknown. An instructional guide prepared by the Copyright Office of the Library of Congress explicitly draws attention to this necessity:

Section 107 is somewhat vague since it would be difficult to prescribe precise rules to cover all situations. … Section 107 makes it clear that the factors a court shall consider shall “include” [the four factors].  … [T]he terms “including” and “such as” are illustrative and not limitative. The legislative reports state that section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way.[6]

According to a House Report about the 1976 Act, “… since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts (emphasis mine).”[7]

Furthermore, the four factors were to be considered in unity against the objectives of the system of copyright itself. Those objectives are clearly stated in the American Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[8]

But Progress takes root in Play. Part III continues tomorrow.

 

Notes

[1] 8 Anne c. C19 (1709/1710). It must be emphasized that for all the pathos (then and now) about copyright serving to protect starving authors, the statutory language was designed principally to keep order in the book trade. This period of time has received extensive coverage; Lyman Ray Patterson and Mark Rose are among the founders of this canon of scholarly work. See L.R.Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968) and M.Rose, Authors and Owners – the Invention of Copyright (Cambridge: Harvard University Press, 1993).

[2] Folsom v. Marsh  9 F. Cas. 342, (C.C.D. Mass. 1841) [Folsom]. However “… many of the points raised in Folsom were anticipated two years earlier by Justice Story in Gray v. Russell;”see William Patry, The Fair Use Privilege in Copyright Law, 2d ed. (Washington DC: The Bureau of National Affairs, Inc., 1995) at 19.

[3] Folsom at 348.

[4] That fair use eventually became a component within statutory law was not a foregone conclusion; the process took considerable time and discussion. In 1958, at the behest of the Subcommittee on Patents, Trademarks, and Copyrights, Alan Latman authored a study concerning fair use and raised two questions: (i) should fair use should be codified into law; and, (ii) if so, to what detail? His work was circulated to an advisory panel of nine copyright experts, eight of whom argued that fair use should not be codified with any attempt at specificity. See Alan Latman, “Fair Use of Copyrighted Works, Study No. 14,” Copyright Law Revision, Studies Prepared for the Subcomm. On Patents, Trademarks and Copyrights, Comm. on the Judiciary, 86th Cong. 2d Sess., (Comm. Print 1960).

[5] 17 U.S.C. § 107 (2000 & Supp. IV 2004).

[6] Marybeth Peters (Senior Attorney Advisor), General Guide to the Copyright Act of 1976 (September 1977), United States Copyright Office, Library of Congress, at 8:2,

[7] H.R. Report No. 94-1476, 94th Cong. 2d Sess. 65(1976). Also cited in Halpern et al, Fundamentals of United States Intellectual Property Law: Copyright, Patent, Trademark, 3rd edition (Wolters Kluwer: The Netherlands, 2011) p.18.

[8] U.S. Constitution, Art. I, § 8, cl. 8.