The Meaning of Fair Use Guidelines
• Various groups have developed guidelines that apply fair use to diverse situations.
• Even though your use may not fit within these guidelines, your use may still be fair use.
• The guidelines may be helpful for some needs, but users must remember that they are not the law.
• Only by returning to the four factors can one have the full benefit of fair use.
WHEN COURTS DEVELOPED the law of fair use, and when Congress enacted the first fair use statute in 1976, they made clear that the law of fair use was never intended to anticipate specific answers for individual situations. Indeed, Congress acted deliberately to assure that it would not freeze the doctrine of fair use by giving it a narrowly defined meaning. As a result, the law calls on each of us to flexibly apply a set of factors to each situation. Because of the variability of the law, reasonable people can and will disagree about the meaning of fair use in even the most common applications. Given that courts have not addressed many of the fair use needs of education, we are often left to learn, debate, and sometimes simply disagree about the reach of the law.
Evolution of Guidelines
Educators, librarians, and others expressed great concern about the possible ambiguity of fair use, even before Congress enacted the first fair use statute in 1976. Congress urged interested parties to meet privately and to negotiate shared understandings of fair use. The result was a series of guidelines that attempt to define fair use as applied to common situations. The first of such guidelines emerged in 1976 on the issues of photocopying for classroom handouts and the copying of music.
Through the years, various groups have devised guidelines on other issues, from off-air videotaping to library copies. In the 1990s, guidelines gained renewed prominence with the formation of the Conference on Fair Use (CONFU). CONFU was an outgrowth of the National Information Infrastructure initiative under the Clinton administration, and it involved participation from a broad range of interests: teachers, librarians, industry and government officials, and many others. The final report from CONFU proposed three more guidelines for newer technological issues.
Major Guidelines, 1976–1998
Various groups have issued guidelines since 1976. The following list comprises the most significant of those guidelines, in chronological order. Accompanying each entry is a citation to the report or other publication in which the guidelines originally appeared.
Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, March 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sess. [1976]. H. Doc. 1476: 68–70.)
Guidelines for Educational Uses of Music, April 1976. (U.S. Congress. House. Copyright Law Revision, 94th Cong., 2d sess. [1976]. H. Doc. 1476: 70–71.) These guidelines are reprinted in a host of different books and other publications. Many of them are available on the website of the Music Library Association: http://copyright.musiclibraryassoc.org/.
Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes, October 1981. (U.S. Congress. Congressional Record, vol. 127, no. 18, pp. 24048–49 [1981]. Reprinted soon after at U.S. Congress. House. Report on Piracy and Counterfeiting Amendments, 97th Cong., 1st sess. [1982]. H. Doc. 495: 8–9.)
Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use, American Library Association, March 1982. (Originally published as a separate pamphlet from the American Library Association. Available at www.cni.org/docs/infopols/ALA.html [scroll down the web page to find the correct item].)
Library and Classroom Use of Copyrighted Videotapes and Computer Software, American Library Association, February 1986. (Reed, Mary Hutchings and Debra Stanek, “Library and Classroom Use of Copyrighted Videotapes and Computer Software,” American Libraries 17 (February 1986): supp., pp. AD. Available at www.ifla.org/documents/infopol/copyright/ala-1.txt.)
Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community, Educom, January 1992. (Originally published as a separate pamphlet from Educom, a predecessor organization to Educause. Available at www.ifla.org/documents/infopol/copyright/educom.txt.)
Fair-Use Guidelines for Electronic Reserve Systems, March 1996. (These guidelines were originally developed by participants in CONFU but were not included in the final report. This document and many other useful resources are available from the Electronic Reserves Archive developed by Jeff Rosedale at Manhattanville College: www1.mville.edu/administration/staff/jeff_rosedale/. In more recent years, the American Library Association issued a new set of guidelines on “Fair Use and Electronic Reserves.” www.ala.org/ala/issuesadvocacy/copyright/fairuse/fairuseandelectronicreserves.)
Proposal for Educational Fair Use Guidelines for Digital Images, Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, pp. 33–41.)
Proposal for Educational Fair Use Guidelines for Distance Learning, Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, pp. 43–48.)
Proposal for Fair Use Guidelines for Educational Multimedia, Conference on Fair Use, November 1998. (Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, November 1998, pp. 49–59.)
Some guidelines have proven to be enormously influential on our conceptualization of fair use. The earliest document, regarding photocopying for classroom purposes, reinterprets the four factors into such notions as “spontaneous” copying, and it calls on teachers to meticulously count words on the page before making multiple copies of articles as handouts. These standards have appeared often in the literature of the law and in policy documents at colleges, universities, schools, and other institutions throughout the country. However influential the guidelines may be, their role has been a mixed blessing. For many users, guidelines are a source of certainty when fair use seems unsettling. For many other users, guidelines are a constraint on the law’s flexibility.
What to Do with the Guidelines?
The main motivation behind most of the guidelines has been to bring some degree of certainty to common fair use applications. Yet none of these guidelines has any force of law. None of the guidelines has been enacted into law by Congress, and none has been adopted as a binding standard of fair use in any court decision. So do they present appropriate answers to some fair use problems?
Whatever the possible benefits of guidelines, the author of this book has written at length about their shortcomings.1 Deficiencies of the guidelines include the following:
• They often misinterpret fair use, infusing it with variables and conditions that are not part of the law.
• They create rigidity in the application of fair use, sacrificing the flexibility that allows fair use to have meaning for new needs, technologies, and materials.
• They tend to espouse the narrowest interpretations of the law in order to gain support from diverse groups.
Whatever the virtues or hazards of the guidelines, each individual or institution must decide whether to adopt or follow any of them. Even the most enthusiastic supporter of the guidelines, however, cannot avoid some of their consequences. The guidelines will never address all needs. Rather, we must steadily turn to the factors in the law to understand each new situation. The guidelines also demand diligent oversight and enforcement if they really are to become the policy standards for educators, librarians, and others. For example, if the guidelines on classroom photocopying constitute the limits of fair use, then the educational institution will need to impose and expect compliance with the full roster of detailed measures of allowable activity. Implementing the standards in the guidelines can at times be more demanding than struggling with the flexibility of fair use.
Basing a decision on the four factors in the statute, rather than on the guidelines, can have real advantages. The law’s flexibility is important for enabling fair use to meet future needs and to promote progress in the academic setting or elsewhere. Accepting that flexibility also allows some important protections for educators and librarians. The good faith application of fair use can lead a court to cut entirely some of the liabilities that educators or librarians might face in an infringement lawsuit. The only way to apply fair use in good faith is by learning the law and applying it; the only way to apply the law is by working with the four factors in the statute. In the final analysis, the law itself may offer greater security than can the certainty of the fair use guidelines.
Note
1. Kenneth D. Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” Ohio State Law Journal 62 (2001): 599–702.