V. Fair Use In The Electronic Age: Serving The Public Interest

The genius of United States copyright law is that, in conformance with its constitutional foundation, it balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. Taken together, fair use and other public rights to utilize copyrighted works, as confirmed in the Copyright Act of 1976, constitute indispensable legal doctrines for promoting the dissemination of knowledge, while ensuring authors, publishers and copyright owners appropriate protection of their creative works and economic investments.

The fair use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Additional provisions of the law allow uses specifically permitted by Congress to further educational and library activities.

A long-standing principle is that copyright exists for the public good. The benefits of the new technologies should flow to the public as well as to copyright proprietors. As more information becomes available only in electronic formats, the public's legitimate right to use copyrighted material must be protected. In order for copyright to truly serve its purpose of "promoting progress," the public's right of fair use must continue in the electronic era, and these lawful uses of copyrighted works must be allowed without individual transaction fees.

Fair Use as defined in the Copyright Act of 1976:

Fair use is defined in Sec. 107. - Limitations on exclusive rights: Fair use , which reads:

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 purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

In general, this implies that:

Without infringing copyright, the public has a right to expect:

•  to read, listen to, or view publicly marketed copyrighted material privately, on site or remotely;
•  to browse through publicly marketed copyrighted material;
•  to experiment with variations of copyrighted material for fair use purposes, while preserving the integrity of the original;
•  to make a first generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study, scholarship, or research; and
•  to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily.

Without infringing copyright, nonprofit libraries and other Section 108 libraries, on behalf of their clientele, should be able:

• to use electronic technologies to preserve copyrighted materials in their collections;
• to provide copyrighted materials as part of electronic reserve room service;
• to provide copyrighted materials as part of electronic interlibrary loan service; and
• to avoid liability, after posting appropriate copyright notices, for the unsupervised actions of their users.

Users, libraries, and educational institutions have a right to expect:

• that the terms of licenses will not restrict fair use or lawful library or educational uses;
• that U.S. government works and other public domain materials will be readily available without restrictions at the marginal cost of dissemination; and
• that rights of use for nonprofit education apply in face-to-face teaching and in transmittal or broadcast to remote locations where educational institutions must  reach their students.

Note:  Charlotte Cubbage, Head Core/Reserve/General Information Center, Northwestern University Library, graciously gave permission to use her text from their Main Reserve web site.  Northwestern University Library Main Reserve created much of the text used in this document.

September 2002