Fair Use, Not Free Use

by Johannes Munter

Fair Use Week is here again. Although you might not have noticed, the Association of Research Libraries has coordinated this annual celebration of the fair use doctrine for the past five years. Although copyright protection and fair use seem to many to be diametrically opposite, this is a misconception that only bears any resemblance to reality when the fair use doctrine is stretched beyond its natural and statutory bounds to threaten the livelihood of content creators.

The fair use doctrine is an integral part of US copyright law. It allows creators to create new creative works by drawing from older, existing works. It allows critics to support their arguments with short clips or photos. It allows comedians to create parodies of esteemed works and documentarians to bring history to life. In other words, it allows our culture to evolve and build on what came before. And progress itself is the very raison d’être of constitutional copyright protection — “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.” It is also for this very reason that most creators and copyright owners do not have anything against the fair use principle.

Although fair use is immensely important for the copyright system and the creative community, determining what counts as fair use can be difficult. Courts in the United States employ a four-factor test, established by the Copyright Act, which requires considering the purpose and character of the new work, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect the allegedly infringing work would have on the market. In effect, these factors mean that courts have to take into consideration issues such as how much of the original work is incorporated in the new work, whether it has been modified, whether the new work is for commercial or non-commercial use, and whether the copyright owner would be likely to create such a work herself. While this multifaceted test means that determining fair use can be complicated, by following it closely and adhering to the careful balance struck by the Copyright Act, we can ensure that the copyright system keeps working for everyone and that our creative community can continue doing what they do best — creating world-class arts and science.

Problems arise when courts extend the fair use doctrine beyond its natural bounds without considering the potentially devastating consequences it can have on the creative community. For example, in the Fox News Network v. TVEyes, Inc. case, the District Court originally found that the service offered by TVEyes, which copies live broadcast from over 1,400 radio and television stations and then distributes these copies to its subscribers, was in large parts protected by fair use. Although the court held that the search and download functions offered by TVEyes did not qualify as fair use, the archiving function that is at the very heart of the service survived the challenge. This decision, which clearly went well beyond any objective fair use standard exemplifies the challenges faced by the creative community on a daily basis, for there can be no argument that TVEyes copied the works of others in their entirety, regardless of their newsworthiness, for purely commercial use, and there is no doubt that television stations — just like so many other creative publishers — are in the business of selling and marketing copies of their own programming. TVEyes should have been a clear case, but the District Court disagreed. However, thankfully, the Second Circuit released its long-awaited opinion — the oral arguments were already in early-2017 — this week, reversing the District Court’s opinion and safeguarding the essential role of fair use in our copyright law.

Fair use is essential for securing free speech in our society, as noted by the Supreme Court itself, and it is an integral part of the Copyright Act. With the exception of cases such as TVEyes, the creative community loves fair use. It is essential for securing free speech in our society, as noted by the Supreme Court itself, and it is an integral part of the Copyright Act.