{"id":254,"date":"2017-02-22T04:53:09","date_gmt":"2017-02-22T04:53:09","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=254"},"modified":"2017-02-22T04:54:14","modified_gmt":"2017-02-22T04:54:14","slug":"fair-use-week-2017-day-three-with-guest-expert-krista-cox","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2017\/02\/22\/fair-use-week-2017-day-three-with-guest-expert-krista-cox\/","title":{"rendered":"Fair Use Week 2017: Day Three With Guest Expert Krista Cox"},"content":{"rendered":"

\"fuw-arl\"<\/strong><\/h2>\n

Debunking Fair Use Myths<\/strong><\/h2>\n

By Krista Cox<\/strong><\/p>\n

Many myths perpetuate in the world of copyright.\u00a0 There are myths about copyright term<\/a>, copyrightability, and the most important exception to copyright: fair use.\u00a0 Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances.\u00a0 Without fair use, we might not have the great technological advancements like DVRs and search engines.\u00a0 Without fair use, there would be no parody, no critique, or mash-ups.\u00a0 Without fair use, scholarship and education would be severely hampered.\u00a0 Unfortunately, some myths surrounding fair use serve to severely limit this essential right or might cause confusion about what is actually a fairly predictable doctrine with plenty of existing guidance.<\/p>\n

For Fair Use Week 2017, ARL commissioned an infographic on ten fair use myths and facts<\/a>.\u00a0 This post focuses on two of those ten myths and facts.<\/p>\n

\n

Myth: Fair use is a defense, or minor exception, not a right.<\/em><\/h4>\n

Fact: Fair use is a right that accommodates the First Amendment.<\/strong><\/h4>\n<\/blockquote>\n

Often, we hear that fair use is a defense to copyright infringement.\u00a0 Rightholders categorize fair use as merely a defense that excuses copyright infringement.\u00a0 In reality, however, fair use is a critical right and Congress has recognized its status as a user\u2019s right.\u00a0 Section 108 of the Copyright Act, which provides for the exceptions for libraries and archives, explicitly references \u201cthe right of fair use.\u201d<\/p>\n

Fair use must be viewed as a right because of its essential relationship to freedom of speech and expression.\u00a0 The Supreme Court has acknowledged the important role of fair use as a First Amendment \u201csafeguard.\u201d\u00a0 In Eldred v. Scott<\/em>, for example, the Court noted that the idea-expression distinction for copyrightability standards and the fair use right are \u201cgenerally adequate to address\u201d First Amendment concerns and that these copyright elements serve as \u201cbuilt-in First Amendment accommodations.\u201d\u00a0 The Court continues by explaining, because \u201cThe Copyright Clause and First Amendment were adopted close in time, [t]his proximity indicates that, in the Framers\u2019 view, copyright\u2019s limited monopolies are compatible with free speech principles.\u00a0 Indeed copyright\u2019s purpose is to promote the creation and publication of free expression.\u201d The \u201cCopyright Clause,\u201d of course, refers to the constitutional purpose of copyright to \u201cpromote the progress of science and the useful arts.\u201d\u00a0 Fair use supports both this purpose and the First Amendment.\u00a0 In fact, the only way to square the potential restrictions that copyright places on speech with the guaranteed right to freedom of expression, a flexible mechanism must exist to ensure that copyright does not conflict with free speech.<\/p>\n

Today, more than ever, the First Amendment is fundamental to our democratic society.\u00a0 It is critical in ensuring access to information, both in terms of political and economic issues, but also in terms of arts and culture.\u00a0 Kyle K. Courtney\u2019s Fair Use Week 2017 kickoff video, Fair Use Fights Fascism<\/em><\/a>, discusses the importance of fair use to the First Amendment in today\u2019s political climate.\u00a0 Beyond the importance of sharing information in the political discourse, as one of my former law professors, Joseph P. Bauer, pointed out in his article Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies<\/em><\/a>,* \u201cThe First Amendment may also act as a societal safety valve.\u00a0 If people feel less free to communicate either orally or in written form, they may resort to less desirable forms of communication, including violent methods.\u00a0 The freedoms guaranteed by the First Amendment make it less likely that those alternatives will be necessary.\u201d<\/p>\n

Because of the role of fair use in protecting the First Amendment, it is correctly viewed as a right.<\/p>\n

\n

Myth: Where a specific limitation or exception exists under copyright law, fair use does not apply.<\/em><\/h4>\n

Fact: Fair use is a right that exists in addition to specific exception.<\/strong><\/h4>\n<\/blockquote>\n

Another fair use myth is that where a specific limitation or exception exists under copyright law, a user cannot rely on the fair use doctrine.\u00a0 During the Authors Guild v. HathiTrust <\/em>litigation, the Authors Guild argued that the actions of HathiTrust <\/em>were impermissible because they went beyond the scope of the Section 108 library exceptions. The Authors Guild claimed that libraries could only perform activities explicitly laid out under Section 108 and that fair use was not relevant to the activities of HathiTrust.\u00a0 The Second Circuit rejected this argument\u2014giving it no more weight than a footnote in its decision\u2014noting that Section 108(f)(4) unambiguously permits fair use to work in tandem with the specific exception: \u201cNothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .\u201d<\/p>\n

Even beyond the explicit savings clause under Section 108, fair use clearly works in tandem with other specific limitations and exceptions.\u00a0 The Authors Guild also tried to claim that HathiTrust\u2019s provision of accessible format copies to those with print disabilities violated copyright.\u00a0 Although Section 121 of the Copyright Act provides for a specific exception for the creation and distribution of accessible works, the Second Circuit turned first to the fair use doctrine and found that this activity is, indeed, a fair use.\u00a0 As a result, the Second Circuit found \u201cwe need not consider\u201d whether the activity was permitted under the specific exception in Section 121.<\/p>\n

While specific exceptions provide certainty for particular activities or apply where fair use does not, they do not exclude the applicability of fair use.\u00a0 Instead, the specific exceptions essentially provide a safe harbor while fair use accommodates not only other uses, but also responds to changes in technology or circumstances, effectively updating the specific exceptions.<\/p>\n

In fact, specific exceptions may actually be evidence that Congress recognizes a strong public policy interest in permitting these types of uses and the first fair use factor (the purpose and character of the use) should therefore tilt in favor of the user.\u00a0 Jonathan Band has written an excellent article, The Impact of Specific Exceptions on Fair Use<\/em><\/a>, making this argument.\u00a0 The Association of Research Libraries, together with other library organizations and the Internet Archive, also advanced this argument recently in its amicus brief in Capitol Records v. ReDigi<\/em><\/a>.<\/em><\/p>\n

Fair use is critical to a balanced copyright system and it\u2019s a shame that there are so many myths around this important right.\u00a0 Hopefully we can continue to celebrate fair use every day\u2014giving it a little bit of extra love this week\u2014and help dispel some of these myths.<\/p>\n

You can see all ten fair use myths and facts here<\/a> and learn more about Fair Use\/Fair Dealing Week here<\/a>.<\/p>\n

*In his article, Professor Bauer argues that the idea-expression dichotomy and fair use doctrine ameliorate the conflict between the Copyright Act and the First Amendment, but that they are insufficient.\u00a0 He advocates for an external mechanism\u2014beyond the internal mechanisms of the idea-expression distinction and fair use\u2014to promote greater protections for the First Amendment.<\/p>\n

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.\u00a0 Prior to joining ARL, Cox was the staff attorney\/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She\u00a0may be reached at\u00a0<\/em>krista@arl.org<\/em><\/a>\u00a0or on Twitter: <\/em>@ARLpolicy<\/em><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Debunking Fair Use Myths By Krista Cox Many myths perpetuate in the world of copyright.\u00a0 There are myths about copyright term, copyrightability, and the most important exception to copyright: fair use.\u00a0 Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances.\u00a0 Without […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[257,690],"tags":[138871],"class_list":["post-254","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","tag-fair-use-week"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-46","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/254","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=254"}],"version-history":[{"count":6,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/254\/revisions"}],"predecessor-version":[{"id":261,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/254\/revisions\/261"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=254"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=254"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=254"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}