Reproduction of Copyrighted Works by Educators and Librarians | Page 7

claim that a defendant's acts constituted a fair use
rather than an infringement has been raised as a defense in innumerable
copyright actions over the years, and there is ample case law
recognizing the existence of the doctrine and applying it. The examples
enumerated at page 24 of the Register's 1961 Report, while by no
means exhaustive, give some idea of the sort of activities the courts
might regard as fair use under the circumstances: "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."
Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has ever
emerged. Indeed, since the doctrine is an equitable rule of reason, no
generally applicable definition is possible, and each case raising the
question must be decided on its own facts. On the other hand, the
courts have evolved a set of criteria which, though in no case definitive
or determinative, provide some gauge for balancing the equities. These
criteria have been stated in various ways, but essentially they can all be

reduced to the four standards which have been adopted in section 107:
"(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for non-profit 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."
These criteria are relevant in determining whether the basic doctrine of
fair use, as stated in the first sentence of section 107, applies in a
particular case: "Notwithstanding the provisions of section 106, 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."
The specific wording of section 107 as it now stands is the result of a
process of accretion, resulting from the long controversy over the
related problems of fair use and the reproduction (mostly by
photocopying) of copyrighted material for educational and scholarly
purposes. For example, the reference to fair use--"by reproduction in
copies or phonorecords or by any other means"--is mainly intended to
make clear that the doctrine has as much application to photocopying
and taping as to older forms of use; it is not intended to give these
kinds of reproduction any special status under the fair use provision or
to sanction any reproduction beyond the normal and reasonable limits
of fair use. Similarly, the newly-added reference to "multiple copies for
classroom use" is a recognition that, under the proper circumstances of
fairness, the doctrine can be applied to reproductions of multiple copies
for the members of a class.
The Committee has amended the first of the criteria to be
considered--"the purpose and character of the use"--to state explicitly
that this factor includes a consideration of "whether such use is of a
commercial nature or is for non-profit educational purposes." This
amendment is not intended to be interpreted as any sort of not-for-

profit limitation on educational uses of copyrighted works. It is an
express recognition that, as under the present law, the commercial or
non-profit character of an activity, while not conclusive with respect to
fair use, can and should be weighed along with other factors in fair use
decisions.
*General intention behind the provision*
The statement of the fair use doctrine in section 107 offers some
guidance to users in determining when the principles of the doctrine
apply. However, the endless variety of situations and combinations of
circumstances that can rise in particular cases precludes the formulation
of exact rules in the statute. The bill endorses the purpose and general
scope of the judicial doctrine of fair use, but there is no disposition to
freeze the doctrine in the statute, especially during a period of rapid
technological change. Beyond a very broad statutory explanation