Fair use in copyright law: news commentary and educational applications

¶ … Copyright Law

In the past few years, the "fair use" element of copyright law as it applies to news commentary and educational uses has emerged as a controversial topic, raising the awareness of intellectual property practitioners, copyright holders and governmental agencies alike. Famous copyright cases such as the ones involving Vanilla Ice and Batman Forever have assisted in bringing copyright issues involving fair use to the forefront. Technology as further complicated the problem by easing the manufacture of digital processes involving music and film, as well as the widespread availability of material on the Internet. Federal copyright can be viewed as a bargain between the creator of the writing or invention and the people, as represented by the federal government (Hollaar, 2002). In trade for protection for a limited term (and the ability to commercially exploit the writing or invention during that time because of that protection), the creator lets the public have all rights to the writing or invention after the term of protection ends (Hollar, 2002). However, there are exceptions to copyright law, under the "fair use" provision. Fair use under the United States Copyright Act, allows the use of copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research. However, there is no clear cut line, and the fair use element of copyright law has been the subject of much debate. This paper will analyze the provisions of copyright law in regard to fair use focusing on news commentary and educational uses.

Constitutional Provision Establishing Copyright

The history of the first copyright laws have origins that date back as early as the 1500's when printing presses were first invented. At that time, the risk of unauthorized copying of material was very low, as only a few printers existed and the owners of these printers were well-known. The first copyright laws in the American colonies were used to control the content of what was published, rather than to prevent unauthorized copying. Shortly after the Revolutionary War, the Continental Congress recommended that the states adopt copyright laws (Hollaar, 2002). With the new Constitution, the Congress was given the power "to promote the Progress of Science and the useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries (Hollaar, 2002)." This early version of the Patent and Copyright Clause was found in the United States Constitutional, Article I, Section 8. According to Hollaar (2002), at that time, "science" referred to knowledge, and the "useful arts" are what we now call technology. A review of the literature indicates that scholars currently view that early Patent and Copyright Clause as a limitation on Congress, not a grant of authority. This is due to the fact that patents and copyrights must have limited durations, and others have argued that any copyright or patent law passed by Congress must be shown to "promote the Progress of Science and the useful Arts" when they feel that copyright or patent is limiting something that they feel is worthwhile (Hollaar, 2002).

In 1790, the first copyright act was signed into law, called the Copyright Act of 1790, which granted initial rights in a work to its author for 14 years with a renewal term of another 14 years. Although a notice was not required, registration of the work with the clerk of the district court and publication of the registration in a newspaper for four weeks was necessary (Hollaar, 2002). The 1790 Act gave protection to any "map, chart, or book" and also protected unpublished manuscripts, however, protection was limited to United States citizens, allowing the unrestricted copying of foreign books. The Copyright Act of 1970 was revised several times; revisions were made to include new technologies that emerged such as photographs and dramatic performances. A further revision included the requirement of placing a notice of copyright on every printed copy.

In 1909 the Act was once again revised, expanding the copyright term to an initial period of 28 years and a one-time renewal period of 28 years, dating from the first publication with proper notice. Under this Act, the publication of a work without notice still resulted in loss of copyright protection. The most dramatic revision of the copyright act occurred in the 1976 revision, discussed below.

1970's Revision of the Copyright Act

The Copyright Act of 1976 covered all "original works of authorship," and although it gave many rights to the copyright owner, it also contained many exceptions for particular cases. It also codified a "fair use" exception, permitting the use of copyrighted works to be judged for fairness on a case-by-case basis (Hollaar, 2002). The 1976 Act remained undecided as how to treat computer programs and computer databases, which consisted of the new emerging technology at that time. In 1980 the Act was revised by adding a definition of computer programs. However, the most controverasial revision of the 1976 Act involved the fair use exception, which held that 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.

Under the Act, the determination of fair use includes the examination of four factors: (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. Hollaar (2002) notes that while the statute lists a number of purposes for fair use copying ("criticism, comment, news reporting, teaching, scholarship, or research"), it does not say that any of those are automatically a fair use. Instead, it says that a fair use for such purposes is not an infringement, with the four factors determining whether or not the particular use is fair (Hollaar, 2002). The fair use exception raised much debate because the court must take into consideration each of the four factors, but not all four factors must be met. This gave wide discretion for the courts in deciding a fair use case, but also set no precedent for common cases.

This controversy over fair use spurred numerous Congressional hearings regarding the issue. The Register of Copyrights, or the U.S. Copyright Office, testified at three Congressional hearings in 2002. The Senate Committee on the Judiciary held a hearing on the Intellectual Property Protection Restoration Act. The House Subcommittee on Courts, the Internet, and Intellectual Property held two hearings: a two-day hearing regarding the Copyright Office's Digital Millennium Copyright Act (DMCA) Section 104 report, and one on reform of the Copyright Arbitration Royalty Panels (CARPs) (U.S. Copyright Office, 2002). The Intellectual Property Protection Restoration Act addressed issues raised by two 1999 rulings in which the Supreme Court determined that the doctrine of sovereign immunity prevents states from being held liable for damages for violations of the federal intellectual property laws even though states enjoy the full protection of those laws (U.S. Copyright Office, 2002). At the request of Congressional staff, the Copyright Office moderated negotiations between intellectual property owners and public universities over the proposed legislation (U.S. Copyright Office, 2002). In 2005, a United States Congressional subcommittee met to discuss the revision of the Digital Media Consumers' Rights Act to allow consumers to exercise their fair use rights by allowing them to make copies of protected works for personal use. Opponents of this revision included those that believed that any failure to tighten up copyright laws would lead to large scale piracy (Bangeman, 2005).

Fair Use Focusing on News Commentary

Fair use as it relates to news commentary or news reporting is one area of much debate. This is because it is very difficult to determine that a reporter or an editor has stepped over the line from fair use into copyright infringement.. As a result, journalists and bloggers, as well as almost anyone that wants to discuss, report on or share cultural materials, faces problems with respect to copyright (AUSC Annenberg, 2007). An example of these problems with respect to news commentary are the widespread production of articles on the Internet, and websites that take articles from another source and reproduce them without permission.

Owners of these websites argue that this is part of news reporting and commentary and is part of the exchange of ideas and it should be considered fair use. AUSC Annenberg (2007) raises the idea that someone may send another individual a whole article from the New York Times because it's the best way of sharing the information. According to AUSC Annenberg (2007), there's a very strong argument that that kind of exchange serves one of the important purposes underlying fair use. News reporters face the additional difficulty of whether and under what circumstances they can quote and critique. News commentaries online face even more difficulties in regard to laws regarding digital distribution and what constitutes fair use.

Law Review Articles and Court Decisions Involving Fair Use

There have been many law review articles written and court cases decided regarding the fair use exception as it applies to educational uses and news commentary. The first case to adopt the label "nominative fair use" was New Kids on the Block v. News America Publishing, Inc., 971 F.2nd 302 (9th Cir. 1992), in which the court held it permissible for two newspapers to refer by name to the New Kids on the Block when they ran popularity contests for the members of the musical group. Since it was permissible for the newspapers to refer to the band itself, use of the band's name was the only sure way of identifying who the media was referring to. Although the court expressly acknowledged that the defense did not fit the fair use test defined by statute and although the court also characterized the statute as a "comprehensive federal statutory scheme," what the Ninth Circuit concluded was that such use fell outside the statutory scheme "because it does not implicate the source identification function (Moskin, 2005). The defense stood because it was a non-trademark use of the plaintiff's trademark to identify in a truthful, non-misleading way the subject of the popularity contest (Moskin, 2005).

In 1987, in the case WCVB -TV v. Boston Athletic Association, a Boston television news show made prominent use of the name "Boston Marathon" (which happened also to be a registered trademark of the Boston Athletic Association) in its coverage of the race. Without disputing that the name was a protectable mark (one indeed for which the television station had once paid a license fee), the First Circuit held that it was a permitted classic fair use for the broadcaster to use the term in its descriptive sense to identify the event (Moskin, 2005). All the court observed was that the "words do more than call attention to Channel 5's program they also describe the event.... " (Moskin, 2005). N another case, a biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. In this case fair use was upheld because no more than 1% of Wright's unpublished letters were copied and the purpose was informational. In contrast, in Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a biographer paraphrased large portions of unpublished letters written by a famous author. Although people could read these letters at a university library, the author had never authorized their reproduction. The court held for the author due to the fact that the letters were unpublished and comprised a substantial portion of the biography. In another "news commentary case," Roy Export Co. Estab. Of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982, a television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. The court felt that the portions taken were substantial and were part of the "heart" of the film, and ruled against the television news program.

In Harper & Row v. Nation Enterprises, 471 U.S. 539, 225 USPQ 1073 (1985), the Supreme Court found that the copying of about 300 words from a book as not a fair use, while in other cases the copying of an entire work was considered a fair use. In Basic Books v. Kinko's Graphics Corp.,758 F.Supp. 1522 (S.D.N.Y. 1991), Kinko's was held to be infringing copyrights when it photocopied book chapters for sale to students for classes. This was held not to constitute fair use, since Kinko's made money from the copying, rather than the copying being for educational purposes. The court did rule that all coursepacks are infringements, requiring instead that each item in the "anthology" be subject individually to fair-use scrutiny. Similarly, in Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996), another copy shop created and sold "coursepacks" under circumstances similar to Kinko's, and the copy shop was also found to have acted outside the limits of fair use. In this case, the court focused on the effect on the market, and held that (1) that an existing licensing system will weigh heavily against fair use, and (2) that "coursepack" production by a commercial copy shop does not constitute fair use even if professors select the copied materials.

Finally, in Encyclopedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982), the court held that particular copying activities were not fair use. In this case, producers of educational motion pictures and videos sued several public school districts that recorded programs as they were broadcast on public television stations and provided copies of the recordings to member schools. The court acknowledged that although the copies were made for an educational purpose, they were nonetheless commercial products to sell to educational institutions. In this regard, numerous other similar cases have been decided.

Conclusion

Moskin (2005)'s article analyzes the Supreme Court's view of fair use, concluding that because of remaining unsettled questions of statutory interpretation and uncertain application of court decisions there may be some advantage of amending the Lanham Act. His conclusion supports the review of cases and related literature regarding the fair use element of the copyright laws. The copyright laws must be amended to draw clearer cut lines between what constitutes fair use and what is copyright infringement. For example, instead of enumerating four factors to test, the court could apply factors in which all have to apply. Since the court does not apply all of its four factors in determining whether copyright infringement has occurred, news commentators and educators can be unsure of which factor to place more importance on. The copyright act could be amended to include a sharper test for infringement. Coming amendments are necessary for the act, anyway, as technology continues to change and brings along with it newer and easier ways to commit infringement.

Finally, the courts could analyze prior cases and even have separate standards for educational and news commentary uses. For example, all educational uses could be examined under the same standards in the Kinko's case above, whether the purpose of the copying is really for educational advancement or mere profitability. The fair use exception for news commentary would be a harder aspect for the court to decide, because in biography reports there is no doubt that some of the material would be already used and protected. The future changes that technology has in store for us will set the tone for future copyright infringement cases and courts deciding the fair use element. It is only a matter of time before everything, from education to the news becomes available from a single source. Perhaps the courts would be well advised to wait to set a precedent until another new form of digital technology emerges. Additional research and cases are needed.