Educational fair use
legal discussion:
Educational use/Fair Use:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
FL-102, Revised July 2006
§ 107. Limitations on exclusive rights: Fair use40
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 —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) 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.
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives41
(a) Except as otherwise provided in this title and notwithstanding the provisions ofsection 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if —
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e)
§ 110. Limitations on exclusive rights: Exemption of certain performances and displays
Notwithstanding the provisions of section 106 [17 USCS § 106], the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if--(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to--
(i) students officially enrolled in the course for which the transmission is made; or
(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
(D) the transmitting body or institution--
(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
(ii) in the case of digital transmissions--
(I) applies technological measures that reasonably prevent-- (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;
17 USCS § 110
FURTHER:
Purpose U.S. Constitution, Article 1, § 8, Clause 8 17 U.S.C. § 101 et seq.
The [Governing Body for Institution] recognizes that the Federal Constitution grants authors and creators certain rights to protect their property as a means of promoting and advancing knowledge, and that Congress enforces these rights through U.S. Copyright Law. At the same time, the [Governing Body for Institution] recognizes that Congress and the courts have provided that sometimes reproducing someone else’s work is not harmful to that person and using the work is an important part of public discourse. Therefore, a special exception from liability known as the “Fair Use” doctrine is available for educational uses when certain conditions are met. Violations of U.S. Copyright Law by employees and students are prohibited.
Fair use is an affirmative defense. Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997); Supermarket of Homes v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1408–09 (9th Cir.1986). Application of the fair use factors to the facts of a case is not subject to “bright-line” rules. The factors should “be considered together in light of the purposes of copyright, not in isolation.” Sony Computer Entertainment America, Inc. v. Bleem, 214 F.3d 1022, 1026 (9th Cir.2000). See also Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir.2003) (“Contrary to the divide and conquer approach taken by the dissent, we may not treat the factors in isolation from one another.”).
The first paragraph of this instruction describing the effect of a fair use finding is drawn fromTriad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1336 (9th Cir.1995) (fair use permits use of copyrighted material in a reasonable manner without the consent of the copyright owner). The fifth numbered paragraph of the instruction reflects that the elements set forth in the statutory test of fair use in 17 U.S.C. § 107 are by no means exhaustive or exclusive. See Dr. Seuss Enters., 109 F.3d at 1399 (Congress considered the factors as guidelines, not definitive or determinative tests). In appropriate circumstances, the court may enumerate additional factors. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (defendant’s good faith as factor).
For an analysis of the fair use factors, see Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 540–41 (1985). The instruction provided here is a basic instruction that could be supplemented by the court to suggest how the presence or absence of any particular factor may tend to support or detract from a finding of fair use. Similarly, the court may find it appropriate to supplement this instruction to suggest to the jury how to weigh the factors. SeeDr. Seuss Enters., 109 F.3d at 1399 (Congress viewed criteria as guidelines for “balancing the equities” but not as definitive or determinative test).
The Ninth Circuit has considered numerous cases involving application of the fair use factors. The following citations identify cases that might be consulted concerning facts helpful to assessing whether a particular fair use factor exists:
1. Purpose and Character of the Defendant’s Use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Campbell, 510 U.S. at 579–80 (assessing commercial nature of use, whether the use was transformative, whether the use tended to supplant or supersede infringed work, and whether the use parodied or “conjure[d] up” the infringed work); Monge v. Maya Magazines, Inc., 688 F.3d. 1164, 1176–77 (9th Cir. 2012) (concluding publisher’s use of newsworthy wedding photographs of celebrities not fair use because such use was, among other things, minimally transformative and undisputably commercial in nature); Elvis Presley Enters., 349 F.3d at 629 (“Courts have described new works as ‘transformative’ when the works use copyrighted material for purposes distinct from the purpose of the original material.”); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir.2001) (assess whether infringing use is commercial or noncommercial, with commercial use weighing against a finding of fair use, but not conclusive); Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 606–07 (9th Cir.2000) (assessing if use was derivative of other work); Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1121 (9th Cir.1997) (examining whether use competes with infringed work); Triad Systems Corp., 64 F.3d at 1337 (noting whether there is an “appreciable public benefit” arising from the defendant’s use).
2. Nature of Copyrighted Work: Campbell, 510 U.S. at 579–80 (considers whether work is factual or creative in nature and whether work was published and notes this factor of little value in parody cases); Napster, 239 F.3d at 1016 (if copyrighted work is creative in nature, this cuts against fair use finding on second factor); Bleem, 214 F.3d at 1027 (nature of copyrighted work most relevant when “the original material and the copy are of a different nature” for instance, copyrighted work is out of print it is more likely a fair use); Los Angeles News Service, 108 F.3d at 1122 (that infringed work was “informational and factual and news … each characteristic strongly favors” fair use finding); Sega Enters. Ltd. v. Accolade, Inc. 977 F.2d 1510, 1524 (9th Cir.1992) (examines fictitious or functional nature of work and utilitarian aspects); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 970 (9th Cir.1992) (derivative nature); 17 U.S.C. § 107 (“The fact that a work is unpublished shall not itself bar a finding of fair use …”).
3. Amount and Substantiality of Portion of Infringed Work Used by Infringing Work in Relation to the Copyrighted Work as a Whole: Campbell, 510 U.S. at 579–80 (in assessing whether substantial part or “heart” of plaintiff’s work was taken, consider justification for the copying, whether use transformed the work taken, e.g., used fairly as news reporting, parody, etc.); Bleem, 214 F.3d at 1028 (greater the degree of copying involved and the closer those copies are to the essence of the copyrighted work, the less likely the copying is a fair use);Connectix Corp., 203 F.3d at 606–07 (considering whether use occurs in reverse engineering of copyrighted work to gain access to unprotected functional elements of software); Dr. Seuss Enters., 109 F.3d at 1402 (question is whether use was “reasonable in relation to the purpose of the copying”).
4. Effect of Use of Infringing Work on the Potential Market for or Value of the Copyrighted Work: Campbell, 510 U.S. at 590–91 (assessing harm use can cause to plaintiff’s market and market effect if others also infringe through such use; consider if use displaces or substitutes for original work; examine effect of use on derivative market for protected work; “[T]he importance of this [fourth] factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.”); see also Monge, 688 F.3d at 1181 (emphasizing that potential market exists independent of copyright owner’s present intent not to publish copyrighted work); Harper & Row, Publishers, 471 U.S. at 566 (the effect of the defendant’s infringing work on the market for the plaintiff’s work is the most important of the fair use factors); Bleem, 214 F.3d at 1027 (noting that effect on market “factor may be the most important, [but] all factors must be considered, and the commercial nature of the copies is just one element”; use for competitive advertising can support first fair use factor but negate fourth fair use factor); Dr. Seuss Enters., 109 F.3d at 1403 (balance defendant’s public interest as compared with personal gain from the use); Triad Systems Corp., 64 F.3d at 1336–37 (noting that when defendant’s work competes in same market it is less likely a fair use).
5. Additional Factors: Campbell, 510 U.S. at 585 n.18 (defendant’s good faith as factor) (citing Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 562 (1985) (fair use presupposes good faith and fair dealing)); Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.1986)(“courts may weigh ‘the propriety of the defendant’s conduct’ in the equitable balance of a fair use determination”) (citation omitted).
The Ninth Circuit has considered a number of cases involving copying of computer software. In all cases, the trial courts appropriately made use of the four-factor test for fair use. See, e.g.,Connectix Corp., 203 F.3d at 608; Triad Systems Corp., 64 F.3d at 1336–37.
Parody often presents difficulties because the success of its imitative character depends upon its ability to “conjure up” the original work that it parodies. This may create an issue of fair use. See, e.g., Campbell, 510 U.S. at 582–88; Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799 (9th Cir.2003); Dr. Seuss Enters., 109 F.3d at 1399–1401.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
FL-102, Revised July 2006
§ 107. Limitations on exclusive rights: Fair use40
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 —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) 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.
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives41
(a) Except as otherwise provided in this title and notwithstanding the provisions ofsection 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if —
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e)
§ 110. Limitations on exclusive rights: Exemption of certain performances and displays
Notwithstanding the provisions of section 106 [17 USCS § 106], the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if--(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to--
(i) students officially enrolled in the course for which the transmission is made; or
(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
(D) the transmitting body or institution--
(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
(ii) in the case of digital transmissions--
(I) applies technological measures that reasonably prevent-- (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;
17 USCS § 110
FURTHER:
Purpose U.S. Constitution, Article 1, § 8, Clause 8 17 U.S.C. § 101 et seq.
The [Governing Body for Institution] recognizes that the Federal Constitution grants authors and creators certain rights to protect their property as a means of promoting and advancing knowledge, and that Congress enforces these rights through U.S. Copyright Law. At the same time, the [Governing Body for Institution] recognizes that Congress and the courts have provided that sometimes reproducing someone else’s work is not harmful to that person and using the work is an important part of public discourse. Therefore, a special exception from liability known as the “Fair Use” doctrine is available for educational uses when certain conditions are met. Violations of U.S. Copyright Law by employees and students are prohibited.
Fair use is an affirmative defense. Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997); Supermarket of Homes v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1408–09 (9th Cir.1986). Application of the fair use factors to the facts of a case is not subject to “bright-line” rules. The factors should “be considered together in light of the purposes of copyright, not in isolation.” Sony Computer Entertainment America, Inc. v. Bleem, 214 F.3d 1022, 1026 (9th Cir.2000). See also Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir.2003) (“Contrary to the divide and conquer approach taken by the dissent, we may not treat the factors in isolation from one another.”).
The first paragraph of this instruction describing the effect of a fair use finding is drawn fromTriad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1336 (9th Cir.1995) (fair use permits use of copyrighted material in a reasonable manner without the consent of the copyright owner). The fifth numbered paragraph of the instruction reflects that the elements set forth in the statutory test of fair use in 17 U.S.C. § 107 are by no means exhaustive or exclusive. See Dr. Seuss Enters., 109 F.3d at 1399 (Congress considered the factors as guidelines, not definitive or determinative tests). In appropriate circumstances, the court may enumerate additional factors. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (defendant’s good faith as factor).
For an analysis of the fair use factors, see Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 540–41 (1985). The instruction provided here is a basic instruction that could be supplemented by the court to suggest how the presence or absence of any particular factor may tend to support or detract from a finding of fair use. Similarly, the court may find it appropriate to supplement this instruction to suggest to the jury how to weigh the factors. SeeDr. Seuss Enters., 109 F.3d at 1399 (Congress viewed criteria as guidelines for “balancing the equities” but not as definitive or determinative test).
The Ninth Circuit has considered numerous cases involving application of the fair use factors. The following citations identify cases that might be consulted concerning facts helpful to assessing whether a particular fair use factor exists:
1. Purpose and Character of the Defendant’s Use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Campbell, 510 U.S. at 579–80 (assessing commercial nature of use, whether the use was transformative, whether the use tended to supplant or supersede infringed work, and whether the use parodied or “conjure[d] up” the infringed work); Monge v. Maya Magazines, Inc., 688 F.3d. 1164, 1176–77 (9th Cir. 2012) (concluding publisher’s use of newsworthy wedding photographs of celebrities not fair use because such use was, among other things, minimally transformative and undisputably commercial in nature); Elvis Presley Enters., 349 F.3d at 629 (“Courts have described new works as ‘transformative’ when the works use copyrighted material for purposes distinct from the purpose of the original material.”); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir.2001) (assess whether infringing use is commercial or noncommercial, with commercial use weighing against a finding of fair use, but not conclusive); Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 606–07 (9th Cir.2000) (assessing if use was derivative of other work); Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1121 (9th Cir.1997) (examining whether use competes with infringed work); Triad Systems Corp., 64 F.3d at 1337 (noting whether there is an “appreciable public benefit” arising from the defendant’s use).
2. Nature of Copyrighted Work: Campbell, 510 U.S. at 579–80 (considers whether work is factual or creative in nature and whether work was published and notes this factor of little value in parody cases); Napster, 239 F.3d at 1016 (if copyrighted work is creative in nature, this cuts against fair use finding on second factor); Bleem, 214 F.3d at 1027 (nature of copyrighted work most relevant when “the original material and the copy are of a different nature” for instance, copyrighted work is out of print it is more likely a fair use); Los Angeles News Service, 108 F.3d at 1122 (that infringed work was “informational and factual and news … each characteristic strongly favors” fair use finding); Sega Enters. Ltd. v. Accolade, Inc. 977 F.2d 1510, 1524 (9th Cir.1992) (examines fictitious or functional nature of work and utilitarian aspects); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 970 (9th Cir.1992) (derivative nature); 17 U.S.C. § 107 (“The fact that a work is unpublished shall not itself bar a finding of fair use …”).
3. Amount and Substantiality of Portion of Infringed Work Used by Infringing Work in Relation to the Copyrighted Work as a Whole: Campbell, 510 U.S. at 579–80 (in assessing whether substantial part or “heart” of plaintiff’s work was taken, consider justification for the copying, whether use transformed the work taken, e.g., used fairly as news reporting, parody, etc.); Bleem, 214 F.3d at 1028 (greater the degree of copying involved and the closer those copies are to the essence of the copyrighted work, the less likely the copying is a fair use);Connectix Corp., 203 F.3d at 606–07 (considering whether use occurs in reverse engineering of copyrighted work to gain access to unprotected functional elements of software); Dr. Seuss Enters., 109 F.3d at 1402 (question is whether use was “reasonable in relation to the purpose of the copying”).
4. Effect of Use of Infringing Work on the Potential Market for or Value of the Copyrighted Work: Campbell, 510 U.S. at 590–91 (assessing harm use can cause to plaintiff’s market and market effect if others also infringe through such use; consider if use displaces or substitutes for original work; examine effect of use on derivative market for protected work; “[T]he importance of this [fourth] factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.”); see also Monge, 688 F.3d at 1181 (emphasizing that potential market exists independent of copyright owner’s present intent not to publish copyrighted work); Harper & Row, Publishers, 471 U.S. at 566 (the effect of the defendant’s infringing work on the market for the plaintiff’s work is the most important of the fair use factors); Bleem, 214 F.3d at 1027 (noting that effect on market “factor may be the most important, [but] all factors must be considered, and the commercial nature of the copies is just one element”; use for competitive advertising can support first fair use factor but negate fourth fair use factor); Dr. Seuss Enters., 109 F.3d at 1403 (balance defendant’s public interest as compared with personal gain from the use); Triad Systems Corp., 64 F.3d at 1336–37 (noting that when defendant’s work competes in same market it is less likely a fair use).
5. Additional Factors: Campbell, 510 U.S. at 585 n.18 (defendant’s good faith as factor) (citing Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 562 (1985) (fair use presupposes good faith and fair dealing)); Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.1986)(“courts may weigh ‘the propriety of the defendant’s conduct’ in the equitable balance of a fair use determination”) (citation omitted).
The Ninth Circuit has considered a number of cases involving copying of computer software. In all cases, the trial courts appropriately made use of the four-factor test for fair use. See, e.g.,Connectix Corp., 203 F.3d at 608; Triad Systems Corp., 64 F.3d at 1336–37.
Parody often presents difficulties because the success of its imitative character depends upon its ability to “conjure up” the original work that it parodies. This may create an issue of fair use. See, e.g., Campbell, 510 U.S. at 582–88; Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799 (9th Cir.2003); Dr. Seuss Enters., 109 F.3d at 1399–1401.
