The sweep of fair use guidelines

Katherine-Hepburn

I occasionally conduct copyright workshops, particularly at state library associations. I like to talk about the purpose of copyright and of course, fair use. At the last conference, after I made some comments about fair use guidelines (pdf), a workshop attendee declared, “You are blowing my mind.” (Think about “blowing someone’s mind.” Of course, it is just a saying, but I did feel a momentary sense of power.) What I was saying about fair use guidelines? They are “made up,” and do not have the force and effect of the copyright law.

This reminds me of a time years ago at an ALA conference when I was talking to a school librarian about fair use. He said that the fair use guidelines help him manage copyright issues at his school. I said, “Well, you know the fair use guidelines are not in the copyright law.”

He said, “Yes they are.”

“No, they’re not.”

“Yes they are.”

“No, they’re not.”

He insisted, “Yes they are, the guidelines are in Section 159” (or some number he pulled from air).

This librarian so wanted to believe that the fair use guidelines are the law that he made up a section of the copyright law where they supposedly exist. After finally convincing him that the guidelines were that, just guidelines and not fair use, he whispered, “Don’t tell the teachers.”

Understanding the copyright law requires a good deal of “unlearning.” The fair use guidelines are those rules that tell you that, for non-profit educational purposes, using some percentage of a protected work is fair, and supposedly any higher amount is not fair. You can find a slew of them on the Web.

Examples:

Text Material: Up to 10 percent or 1,000 words, whichever is less, of a single copyrighted work of text.

Motion Media: Up to 10 percent or 3 minutes, whichever is less, of a single copyrighted motion media work.

My favorite

Poems: An entire poem of less than 250 words, but no more than three poems by one poet or five poems by different poets from a single anthology. In longer poems, the 250-word limit still applies, plus no more than three excerpts by one poet or five excerpts by different poets from a single anthology may be used.

If this “rule” were true, it would mean that copying 251 words of a poem is an infringement of copyright regardless of the situation. Doesn’t that just sound silly?

How will we know when a use of a work is fair? Congress suggested that a stakeholder group meet, and taking all opinions into account, build a sharing understanding of what fair use looks like.

The fair use guidelines were designed, in part, to help librarians make decisions about fair use in the classroom setting because librarians and educators wanted more clarity about fair use. Librarians loved guidelines for a time and many institutions adopted them. They are handy, if you want to quickly respond to a copyright question with a definite-sounding answer. And the answer is “30 seconds,” period. They make things easier, and many people like a “bright line” between fair and not fair.

Bright lines encourage short term decision-making about copyright without considering the long-term consequences. They can also be used to “freeze” fair use, and fair use needs to be flexible enough to work in a variety of situations, now and in the future. Bright lines also give people the false hope that by adhering to the guidelines, they are in a “safe harbor” and will never be sued. Librarians began to think of the guidelines as law, not realizing that strict adherence would quash creativity and learning. I wager it was around this time that librarians became known as “the copyright police.”

Where did these arbitrary rules come from? As the drafting of the Copyright Law of 1976 worked its (long) way through the legislative process, fair use was codified in the statute for the first time. But what is fair use? How will we know when a use of a work is fair? Congress suggested that a stakeholder group meet, and taking all opinions into account, build a sharing understanding of what fair use looks like. The stakeholder group included publisher and author association representatives, met and came up with classroom guidelines, probably with good intentions. The most important thing for librarians was that the guidelines were easy, and they could rest assure that they would not make mistakes when using fair use, and therefore, not get into trouble. Not only did librarians fear the worse, they were a rule-oriented bunch and disliked ambiguity. Of course it did not help that the American Library Association published its own set of guidelines (pdf) based on the classroom guidelines.

Fortunately, over the last 20 years, many librarians slowly abandoned fair use guidelines in favor of fair use. Fair use education and advocacy has made a real difference. Libraries have used fair use to address distance education, course reserves, orphan works and mass digitization.

But the guideline defenders are out there. For those who find themselves in a copyright bind, a guideline chart that you can find somewhere on the web comes in handy because then you do not have to think critically. Educators and librarians still use the guidelines to make a quick and dirty decision while thoughtful inquiry is prudent, and professionally responsive to information users.

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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