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Confused about Copyright and Fair Use? That’s Understandable…

The folk singer Woody Guthrie would frequently attach a serious warning regarding copyright to copies of his lyric sheets. This sobering statement informed one and all that:

“This song is copyrighted in U.S.A. under seal of copyright #154084, for a period of 28 years, and anybody caught singing it without our permission will be mighty good friends of ours ‘cause we don’t give a darn.”

Guthrie’s sentiment regarding copyright, it is important to remember, is not particularly reflective of the sentiment of many copyright holders. After all, many of those who hold various copyrights give quite “a darn” and are willing to prove just how much they care by threatening legal action. There are certainly some who like to claim that copyright has become obsolete in the age of the Internet, and there are numerous individuals who have demonstrated a thoroughly modern disregard for copyright by downloading copyrighted content in questionably legal ways. Yet it is wrong to suggest that copyright is always simply a manner of total control versus total openness – part of what gets lost in setting up such an opposition is the ways in which people can use copyrighted content without running afoul of copyright. For copyright law has “fair use” provisions, though many people may be just as confused by fair use as they are by copyright law. Thus, in the following paragraphs we shall attempt to present some of the “information you need to know” about copyright and fair use – whilst (in a way thoroughly uncharacteristic of this site) keeping the editorializing to a minimum.

Before discussing fair use it is important to provide a brief refresher on copyright. These are rules and regulations enshrined in the laws of many countries – in the United States copyright is actually part of the Constitution – and the various strictures vary from one country to another. In the US, Clause 8 of Article I, Section 8, of the Constitution states that Congress has the ability:

“to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” (U.S. Constitution)

The goal of copyright is to encourage creators to continue being just that: creators of new material, and seeks to promote this activity by ensuring that they will be able to benefit – usually financially – from their creation. A case can certainly be made that many creators engage in creative activity for non-remunerative reasons, but that is a matter for a different discussion – the intent here is simply to provide a simple sketch of copyright. The point is that copyright gives the “authors and inventors” the ability to control the destiny and uses of that which they have created, “for limited Times” at least. That there might be a compelling difference between “authors and inventors” and “corporate behemoths” is another matter…but I digress…

As copyright was included in the United States Constitution – yes, that Constitution – it should be little surprise that it has gone through various changes and interpretations in the over two hundred years since it was originally developed, and much of the interpretation has revolved around two very important words in the original clause: “limited times.” In Guthrie’s message he referred to a copyright “for a period of 28 years,” and this is an excellent example of the way that copyright durations have changed and been extended. According to Circular 1, produced by the United States Copyright Office, today a work that was created:

“on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death,” (US Copyright Office, 5)

which is considerably longer than 28 years (and the whole “after the author’s death” bit calls into question exactly how such a long copyright benefits the author…but I digress). The law is, predictably, different for those works that were created before January 1, 1978, for those works much has to do with whether the work’s copyright was renewed, and may mean the difference between a given work having a term of 28, 47, 67 or 95 years. Once a work’s term of copyright has expired the work is entered into the “public domain,” at which point it can be freely used by the public without anybody needing to pay or ask permission – granted the continual extensions of copyright terms mean that much material is prevented from entering the public domain. If you have ever wondered why Project Gutenberg is able to make all of those wonderful old books available free of charge…it is because they are in the public domain.

This is by no means meant as an exhaustive explanation of copyright, and it is not an attempt to engage the various ethical conundrums called into being by routine copyright extensions. Nevertheless, even if one does not personally agree with every aspect of copyright law, it is worthwhile to have at least a passing familiarity with it.

Sections 107 through 118 of the US copyright law describe the affordances of “fair use,” times when a copyrighted work may still be used without the user having to fear that they are violating copyright – and thereby opening themselves up to the threat of legal action being brought against them. According to the US Copyright Office’s factsheet on fair use, there are four main elements to be considered in determining whether a given use of a work represents fair use, these four elements are:

“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 sustainability of the portion used in relation to the copyrighted work as a whole; 4. The effect of the use upon the potential market for or value of the copyrighted work,” (Fact Sheet)

It may seem that these four areas provide a great deal of leeway, but caution is essential, as the fact sheet also notes:

“the distinction between fair use and infringement may be unclear and not easily defined…the safest course is always to get permission from the copyright owner before using copyrighted material,” (Fact Sheet)

Indeed, fair use is in the eye of the proverbial beholder, and as anybody who has ever played Dungeons and Dragons knows: Beholders are terrifying monsters with powerful magical abilities and mouths filled with very sharp teeth. Which is another way of saying, that when it comes to copyright the only beholder that can be said to truly matter is the copyright holder (and perhaps a judge); a user may feel certain that their usage of a given work is protected by fair use but should the copyright holder disagree than they will be able to sue for copyright infringement. While it is true that there are certain groups within the fair use/copyright matrix who enjoy a privileged if perilous position – such as libraries and archives – the fact remains that fair use provisions apply to one and all. You do not need to be a librarian to make use of fair use. Material may not be entering the public domain at a steady clip, but fair use ensures that people can still use quotations, appropriate content for new artistic endeavors, engage in cultural criticism and parody, make limited reproductions for personal (non-commercial) purposes – and much more. Though the four elements for determining whether a usage qualifies as “fair use” still linger in the background.

There is something rather quaint about reading Woody Guthrie’s comment about “28 years” at a point when copyright terms are significantly longer than that. And a feeling of paranoia can certainly be induced by an attempt to figure out whether or not one’s usage of copyrighted material would genuinely be protected by “fair use.” Though some may choose to believe otherwise, the fact of the matter is that fair use provisions do not bestow carte blanche – but neither does copyright vest total control in the hands of the copyright holder. Fair use is not the same thing as a continually growing and wonderfully robust public domain, and one can celebrate the allowances (limited though they are) of fair use without this doubling as an endorsement for increasingly restrictive copyright laws. Furthermore, one can believe that cultural creators should be supported for their labor and still think that copyright extensions have become absurdly long and too restrictive.

Not all copyright holders have as communalistic views as Woody Guthrie, and it is unlikely that one morning copyright holders will band together to announce that they “don’t give a darn” but as long as this is the case fair use remains a “mighty good friend” for the public.

Works Cited:

United States Constitution

United States Copyright Office. Fair Use – Fact Sheet

United States Copyright Office. Copyright Basics – Circular One

Some Useful Resources:

Fair Use Week

Hirtle, Peter. Copy Right Term and the Public Domain in the United States (this is great!)

The Copyright Advisory Network (also great!)

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About TheLuddbrarian

“I have no illusions that my arguments will convince anyone.” - Ellul librarianshipwreck.wordpress.com @libshipwreck

3 comments on “Confused about Copyright and Fair Use? That’s Understandable…

  1. natestaggs24
    March 2, 2015

    This post clears up a lot of questions about the idea of copyrighting and fair use. Many people use images on the internet without a company’s permission. Although they may not profit from these images it can still be considered illegal. I also like the Dungeons and Dragons comparison about how fair use is in the eye of the beholder.

  2. Tris Chandler
    March 4, 2015

    Reblogged this on Librarian to be. . . and commented:
    This is important for us to know.

  3. Jack
    March 28, 2015

    Reblogged this on Wyrdwend.

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