The Chronicle of Higher Education
May 17, 1996 (pp. B1-B2)

"What Qualifies as 'Fair Use'?" by Kenneth D. Crews

THE DIFFICULTY that scholars, librarians, and publishers have had in reaching a mutually acceptable definition of "fair use" of copyrighted material in electronic formats underscores what we long have known about fair use: This copyright doctrine is elusive, ambiguous, hopelessly vague, and continuously perplexing. Yet that is just what Congress intended it to be.

When Congress enacted the first fair-use statute, in 1976, it chose to rely on principles established in a lengthy series of court rulings that made the concept a variable standard. Lawmakers wanted fair use to remain flexible, so that it would meet changing needs without new legislation every few years. According to a Congressional report at the time, "since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question [of fair use] must be decided on its own facts."

Most fundamentally, fair use allows limited uses of copyrighted works under certain circumstances (especially for teaching and research) without permission from the owner of the copyright (typically the author or publisher of the material). The concept of fair use essentially balances a copyright owner's monopoly over his or her work with the public's right to use that work to "promote the Progress of Science," in the words of the provision of the U.S. Constitution authorizing the copyright law.

Since late 1994, the quest for a meaningful and widely accepted interpretation of fair use that will apply to copyrighted material available in electronic forms has been the holy grail of the Conference on Fair Use, an informal group of educators, authors, librarians, and publishers—myself included—who hold diverse views on copyright issues. Our monthly meetings in Washington are an outgrowth of the Information Infrastructure Task Force, a federal commission charged with recommending policies and legal provisions to prepare the American economy and society for advances in digital networking and communication. The Conference on Fair Use—affectionately called "Confu"—is one small component of the task force's activities.

Our meetings have surveyed issues involved in formulating guidelines for activities such as professors' placing certain assigned reading on electronic reserve for their students, courses conducted on line, interlibrary loans via computer, downloading and printing of information in electronic data bases, and the digitizing of visual works.

After many months of work, some of Confu's participants (who represent educational institutions and libraries as well as scholarly publishers) have reached preliminary agreement on a set of guidelines for handling material placed on "electronic reserve" (*The Chronicle*, May 10), which is an outgrowth of the traditional practice of instructors' placing printed material on reserve in libraries for their students' use. With electronic reserves, students can gain easier access to assigned material by retrieving it from computer networks.

The proposed guidelines are neither final nor official, but the drafters will disseminate them widely and hope to gain endorsements from additional groups representing higher education, libraries, and publishers. We recognize that both educational institutions and copyright holders will have to make concessions to gain benefits.

The proposed guidelines suggest, for example, that electronic-reserve systems could include short items, such as an entire article from a journal or a chapter from a book, or excerpts from longer items. But the total amount of material put on electronic reserve for a specific course should be only a small proportion of the total assigned reading for a course.

Further, electronic-reserve systems must include notices and warnings about copyright and must caution users against further electronic distribution of the work. Materials on electronic reserve also must include citations or attributions to the original source.

Beyond the preliminary guidelines for electronic reserve, little consensus has emerged on any of the other major issues that we have been discussing concerning use of electronic material. The interests and views of the various camps concerned with copyright diverge too widely—thus making attempts to formulate guidelines based on an already vague and flexible statute that much more difficult. One's view of fair use depends upon one's professional perspective, making the concept something of a Rorschach test of Western legal theory. If a definition of fair use really serves the needs of instructors and students, publishers see lost sales. But if guidelines allow only narrow uses, educators see them as of little benefit for teaching, learning, and research.

A typical Confu meeting might have 30 or more active participants, with at least that many interpretations of the four factors set out in copyright law for determining fair use of copyrighted material. These factors are: the purpose of the use (with the law explicitly supporting use for teaching, research, and scholarship); the nature or characteristics of the material being used; the amount of the work used; and the effect of the use on the market value of, or the potential market for, the original work. Nearly everyone accepts the idea that some use of copyrighted material without permission is fair; the problem is balancing all four factors.

Some Confu participants see making copies of copyrighted material for teaching and research as clearly fair use for educational purposes; others counter that such copies could be used to build an "archive" of material, or that such copies reduce potential sales of the original material. Some people look at single articles in journals and see short pieces of larger periodicals or of a larger body of knowledge; others see the articles as units of information that could be marketed on their own.

THESE differing perspectives sometimes produce sharply conflicting views, as Confu participants learned last year when we first tried to address the issue of electronic reserves. Members of our group could not even agree on how to conceptualize the practice or what to call it. Academics and librarians saw the issue as an electronic enhancement of the traditional way in which published material is put on reserve for students, and thus they believed that electronic copies needed to include complete articles and book chapters.

To commercial publishers and other owners of copyrights, though, electronic reserves constituted an on-demand retrieval system that destroyed the potential to sell those same works to the same students. Some representatives of publishers wanted material on electronic reserve to be limited to excerpts of articles or chapters and to contain only optional—not required—readings. They wanted access to be strictly limited to students enrolled in the particular courses for which the material was placed on reserve, with each student given an individual password.

In light of these sharp divisions, a group of Confu participants gathered early this year to revitalize the discussion of guidelines for electronic reserves. Because Confu may wrap up its discussions this fall, we saw that opportunities for reaching any consensus on the issue might soon dis- appear. We believe that the proposed guidelines present a lawful and workable standard for fair use. Here is how the proposals on electronic reserves specifically would address the four factors used to determine fair use:

-- *Purpose of the use*. Only instructors could request that materials be put on electronic reserve, and only their students should have access to them, to insure that the purpose of placing works in the system was strictly educational. The guidelines suggest several possible methods for limiting access to students in a particular course, including giving them individual passwords, assigning a password for each class, or retrieving works by course number or instructor' s name, not by the author or title of the work.

-- *Nature of the materials selected*. The guidelines clearly focus on journal articles, book chapters, conference papers, and other materials that are the traditional sources of classroom readings—thus emphasizing that the materials are selected for educational purposes. Although not explicitly stated in the guidelines, a series of judicial rulings also has established that non-fiction is more amenable to fair use than is fiction; non-fiction undoubtedly constitutes the dominant share of materials now put on reserve.

-- *Amount of the total work used*. The guidelines indicate that although short items—such as an article from a journal, a poem from a book of poetry, or a chapter from a book or conference proceeding— may be put on reserve, only excerpts are appropriate from long articles or chapters that make up a substantial portion of a copyrighted work. The entire journal or book should not be copied in full.

-- *Effect of the use on the market*. Keeping each item placed on reserve short, relative to the original source, should limit any adverse effects on the market for the work. Several other elements of the guidelines also keep market effects in check, but three are of particular importance. First, a professor may put all readings for a course on electronic reserve, but the readings placed in the reserve system under a claim of fair use should be "a small proportion of the total assigned reading for a particular course." Second, permission from the copyright holder is necessary if the same instructor wants to re-use the reading in the same course in subsequent semesters. Third, the formal copyright notice from the original material should appear in the electronic version, and a warning notice also should be included, similar to the notices that appear on photocopiers in most aca- demic libraries. The warning should say that any further distribution of the electronic version of the work may violate copyright.

Not everyone will find the guidelines acceptable, but they should at least insure that the people who abide by them are making a good-faith effort to comply with the concept of fair use, thus discouraging litigation. The guidelines also can be useful in educating professors and students about the meaning of fair use and the need to respect the rights of copyright owners.

THESE GUIDELINES are not onerous—although they do impose various hurdles and conditions—and they respond to the key concerns of pub- lishers and authors. Thus, they should facilitate effective use of electronic media in teaching and learning, while still providing meaningful protection for copyright owners.

By focusing on practical applications, the guidelines on electronic reserves ultimately should prove more useful than the existing "Classroom Guidelines" for photocopied handouts, which interpret fair use narrowly. Those guidelines, which have been available for two decades, resulted from negotiations among publishers, authors, and educators after Congress passed the last complete revision of copyright law in 1976. Because Congress decided that it was not willing to enact a highly specific standard describing fair use, it urged interested parties to develop their own operat- ing principles. With Congressional support, steady publicity, and occasional litigation, the "Classroom Guidelines" have become well known and have been widely adopted by colleges and universities.

Yet they include severe restrictions on the duplication of materials for classroom purposes without permission, requiring meticulous word counts to determine how much of a work can be copied. Indeed, full compliance with the guidelines would require us to count the number of words on every page of a work—so that we can identify the exact portion of the work we may reproduce—before pressing the button on the photocopier. But during my discussions over several years with hundreds of teachers, librarians, and college administrators at academic meetings, I found only two people who acknowledged actually counting words. "Just once," said one instructor, "but never again."

Undue restrictions undercut the flexibility that lawmakers wanted in determinations of fair use. More important, if standards are onerous and unrealistic, they will be ignored, and copyright owners thus will lose the opportunity to work with faculty members, students, and librarians to help them better understand and apply principles of copyright. Fair use will continue to bewilder and confuse the academy and the publishing industry alike.

To avoid conflict and subterfuge, to serve real educational needs, and to promote acceptance by the faculty members and librarians who must voluntarily abide by them each day, new standards for the fair use of electronic information must be workable and palatable. Guidelines that cannot be applied pragmatically simply are not worth the effort to devise.

Kenneth D. Crews is an associate professor of law and of library and information science at Indiana University-Purdue University at Indianapolis, where he also directs the Copyright Management Center. He is the author of Copyright, Fair Use, and the Challenge for Universities (University of Chicago Press, 1993).


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