The Law of Fair Use and the Illusion of Fair-Use Guidelines
Kenneth D. Crews
October 1, 2001
Ohio State Law Journal, Vol. 62, No. 2, 2001
The relative uncertainty about the meaning of fair use has led various interested parties to develop interpretative “guidelines,” notably for the application to teaching, learning, and librarianship. The best known of these guidelines are the Classroom Guidelines of 1976, which allow teachers to make single copies of short items, such as an article or book chapter, for research or class preparation. Multiple copies are subject to detailed limits, and the guidelines include sweeping prohibitions. The Classroom Guidelines break significantly from the statutory factors of fair use, as do other early guidelines applicable to the reproduction of music and the recording of television programs off-air.
Subsequent efforts to develop fair use guidelines are comparably suspect. The National Commission on New Technological Uses of Copyrighted Works (CONTU) was established by Congress, and in 1979 it recommended standards for copying journal articles for sending to researchers through interlibrary loans. The Conference on Fair Use (CONFU), initiated by the U.S. Patent and Trademark Office, issued a Green Paper report in 1994 that outlined and summarized a wide range of copyright and related issues affecting the expansion of digital commerce and communication. CONFU held meetings throughout the following three years, resulting in three proposals for guidelines on fair use. The Multimedia Guidelines allow uses of limited portions of different types of works for nonprofit educational uses. Distance Learning Guidelines attempt to overcome some of the problems with a specialized statutory exception in effect at that time. Finally, the Digital Images Guidelines allow faculty and others to make digital versions of analog images, but subject to numerous conditions that are not clearly articulated. All of these guidelines deviate from the law of copyright and fair use, and reflect instead a negotiated understanding of allowed uses.
Congress and the courts have acted carefully and explicitly not to elevate any of the guidelines to a legally binding standard. The guidelines reflect a minimalistic view of fair use which proprietor groups were prepared to acquiesce as either unequivocally within fair use or beyond the scope of activity that is worth challenging. However, the guidelines do not displace the importance of applying the four factors from the statute, which remains the source of fair use law. Despite serious problems with the guidelines, they have been a compelling tool for educators who seek to create policies relating to fair use, and for courts that treat the guidelines as a crutch to bolster a ruling and to fend off criticism. Such reliance on guidelines has distorted perceptions of the law.
In responding to the guidelines, educational institutions must remember that none of the fair use guidelines has the force of law, and following the guidelines does not ensure that a user is actually acting within the law. The law of fair use is flexible to meet changing needs and circumstances, while the guidelines are rigid. Staying within fair use law prevents infringement, but the guidelines do not offer even a “safe harbor.” Congress granted an important protection in recognition of lingering uneasiness and the importance of advancing knowledge through a reasonable, balanced, and good-faith understanding of rights and responsibilities. No set of guidelines can offer that same combination of promises. Because of the practical and political pressure to develop interpretations of fair use, this article offers recommendations for the process of their development in the future.
Number of Pages in PDF File: 105
Keywords: copyright, fair use, fair use guidelines, education, libraries, music, distance learning, distance educationworking papers series
Date posted: April 12, 2010
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