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Fixing Fair Use

There’s a good reason why most educators don’t understand US copyright law, especially the Fair Use provisions.

Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous “four factors” about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies.

Clarifying and strengthening fair use is one of the five major goals of Public Knowledge’s proposed Copyright Reform Act.

The current law provides for seven purposes in which fair use applies: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

Among other changes, PK suggests adding three other areas: “incidental uses, non-consumptive uses, and personal, non-commercial uses.”

Incidental uses “involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use–for example, capturing music playing over radio when filming a family moment.” Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, “do not directly trade on the underlying creative and expressive purpose of the work being used.” In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

But it is the third proposal that might prove most controversial. “Personal and noncommercial uses” are said to “have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed.”

Considering all the confusion over what the law allows us to do with media under fair use, not to mention the increasing number of law suits largely designed to intimidate average people from exercising their rights, these extensions and clarifications only make sense.

Unfortunately, big media companies will probably fight it with every dime they can find.


  1. The Science Goddess

    Interesting goals put forth by Public Knowledge—this will definitely be one area to watch.

    I do the best I can with managing copyright material, but I am sure that I trip up here and there. In the past few weeks, I’ve been working on securing some permissions for graphics that I would like to include with presentations to teachers. So far, everyone is amenable (and grateful for the possible publicity), but it is sometimes difficult to know where the line for permission is. Some things published on the web come with the rights for classroom use. Does that mean I can use it in a session with teachers (or only students) as a workshop piece? How many times can I use it? And so forth. I keep trying to colour inside the lines of the law, as it were, and always hope that someone will be forgiving if I have misunderstood the murky rules.

  2. Andrew B. Watt

    I think a lot of teachers simply hold their breath and hope. I encourage my kids to use Wikipedia images on our class wiki, and to include data about the source of the image… but I know they slip up a lot, and that they are unlikely to be held accountable… where I might be.

    I think that the non-commercial Fair Use doctrine is likely to catch on eventually, but we’re not there yet, by any means.

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