Limitations on exclusive rights: Fair use

TITLE 17 CHAPTER 1 Sec. 107.

Sec. 107. - Limitations on exclusive rights: Fair use

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.

Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

      Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). This case is used for this proposition because it is the most recent. The passage from the case quoted below indicates the extent to which the Court has used and relied on the proposition that copyright is to serve the public interest in preference to private interests.

We have often recognized the monopoly privileges [of copyright] that Congress has authorized, while 'intended to motivate the creative activity of authors and inventors by the provision of a special reward,' are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies under the 1909 Copyright Act as follows:

'The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.' (Footnotes omitted.)

We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), where we said:

'The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, encourages others to build freely upon the ideas and information conveyed by a work.' (citations omitted.)

      Comment: Few copyright scholars would dispute the point that lower courts have not always ruled in accordance with these rulings of the Supreme Court. There seem to be two reasons. One is that courts generally have failed to recognize the distinction between the copyright and the work. Without this understanding, there is no basis for distinguishing between the use of the copyright, which requires resort to fair use criteria, and the use of the work, which does not.

      The second reason is that copyright has not been assigned a specific task in regard to the public interest other than the promotion of knowledge and learning. The general goal tends to succumb to the specific goal of protecting the copyright holder's private interest. One remedy for this unbalanced view is to recognize that copyright law protects the public interest in two specific ways: (1) it protects the public domain; and (2) it insures access to recorded knowledge and learning. Once these goals are recognized, it will be easier for courts to maintain a proper balance between the public interest in protecting the proprietary interest of copyright holders and the public interest in protecting the right of access for users.