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COPYRIGHT 2005 Information Today, Inc.
"Why does this still seem like gambling to you? It's a skill game"
--Matt Damon as Mike McDermott in Rounders (199B, Miramax Films)
Throughout my analysis of the copyright limitations available to librarians and other information professionals, published in previous 2005 issues of ONLINE, I have referred to an illustration of risk analysis called the Limitations Pyramid. Essentially, the Pyramid illustrates a premise whereby the risk of copyright infringement broadens as the scope of the limitation broadens. For example, Section 110 is a relatively narrow limitation because only those affiliated with nonprofit educational institutions may use it to limit a copyright owner's exclusive rights. The class of eligible parties for Section 110 is relatively small, but if you qualify for that class, it serves as a stable, specific safe harbor that allows you to use copyrighted works in certain ways without having to seek express permission from the author.
With fair use, on the other hand, there are no qualifications, prerequisites, or fitting in. Fair use is the equal opportunity limitation: It is open to all regardless of race, creed, or color; nonprofit or for-profit; corporate or educational. Fair use allows magazines to quote from other sources without compensation. (For example, I neither paid a royalty nor sought permission to use the quote that opens this article; instead, I relied on the fair use doctrine.) It allows researchers to cite other works. It allows knowledge that is subject to copyright to be reproduced and disseminated rather easily--without condition of prior permission or compensation--under a broad, somewhat unspecific array of circumstances.
Here is where fair use becomes like playing poker. To seasoned veterans of fair use application, using Section 107 (the fair use statute) is not a gamble. Instead, it is a skill game waiting to be exploited and manipulated fairly, a contest in which knowledge of the law, the ability to gather all relevant factual information, and quick decision-making skills combine for consistent wins. Sure, a bit of luck is involved, but no more so than what one would expect in any other circumstance.
Unfortunately, most information professionals misjudge the skill that is necessary to conduct a thorough fair use analysis. They either underestimate the complexity of the doctrine, opening themselves up to legal liability, or overestimate its complexity and never use it. Both errors can be costly. The goal of this article is to begin demystifying fair use so that information professionals count on more than beginner's luck in avoiding a potentially costly infringement action while keeping the doctrine as broad and as viable as Congress intended it to be.
FAIR USE MYTHS
Part of the reason that many information professionals misinterpret the fair use doctrine is because they continue to believe a number of myths about what constitutes fair use. Here are a trio.
"If I give credit to the author, then it is fair use."
I call this the acknowledgment myth, and I hear it repeated often in the educational arena. I also hear this myth repeated as a justification when a person copies a protected work from the Web and then pastes that entire work in an online forum such as an intranet or discussion list, complete with the author's name and the owner's copyright notice.
In fact, neither credit nor attribution equals fair use. Giving credit could keep a charge of plagiarism at bay (which may explain this myth's persistence in educational circles), but means little when it comes to fair use.
"If I use only a little bit, then it is fair use."
I call this the 20-second myth, so named after a common misperception held by many musicians...
Read the full article for free courtesy of your local library.
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