Fair Use is a Right, Haters to the Left: A Primer for Libraries and Other Cultural Institutions

Posted: 29 Mar 2018

Date Written: 2018


The fair use doctrine is an integral part of copyright law. The Supreme Court has described fair use as "the guarantee of breathing space for new expression within the confines of copyright law.” Its codification in the Copyright Act of 1976, balanced the exclusive rights of the creator with a limitation that is critical to copyright’s purpose: “to promote the progress of science and the useful arts.” While fair use was not specifically referenced prior to the 1976 Copyright Act, the doctrine, including the four factors, derived from Justice Joseph Story’s opinion in Folsom v. March (1841).

However, in the 30 years of fair use’s modern statutory existence, a terrible myth has crept its way into the doctrine: fair use is an “affirmative defense.” This myth has created more controversy and misunderstanding of our most critical of all copyright exceptions. But, in the end, it is just a myth, and citizens, journalists, teachers, librarians, authors, students, artists, and others should work to dispel this myth. Fair use is a right.

This article outlines the history of fair use and the development of the “affirmative defense” myth. Part I discusses the origins and history of fair use and its development from English law. Part II reveals the treatises and other secondary sources that began to muddy the fair use doctrine. And Part III reveals how the myth was adapted into the common law by a few courts. Finally, in Part IV, the author offers three areas to examine and help reverse the affirmative defense myth: the accurate legislative history of fair use , the plain meaning textualism of the statute, and modern fair use case interpretation. Each of these studies will reveal that fair use is, and was always meant to be, a fundamental right.

Keywords: copyright, fair use, libraries

Suggested Citation

Courtney, Kyle K., Fair Use is a Right, Haters to the Left: A Primer for Libraries and Other Cultural Institutions (2018). Available at SSRN: https://ssrn.com/abstract=3152153

Kyle K. Courtney (Contact Author)

Harvard University - Law Library ( email )

Cambridge, MA
United States

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