Fair Use Doctrine

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Fair Use: The Basics

The fair use clause is one of the Copyright Act's most important provisions. The clause, which is codified at Section 107 of the Copyright Act, allows teachers, news reporters, critics, researchers, and others to use copyrighted materials in certain circumstances without having to pay royalties or be held liable for copyright infringement.

The strength of the "fair use" privilege, however, has been eroded by a combination of technology and legislation. As more copyrighted works are produced digitally, manufacturers embed digital "locks" within the products' code, making it impossible for customers to use the item as they see fit. Additionally, recent legislation like the Digital Millennium Copyright Act has sanctioned copyright owners' ability to digitally lock their content, and criminalizes attempts to break such locks, even if the conduct otherwise would be proper under the "fair use" privilege.

Another major “fair use” issue is raised by “peer-to-peer” file sharing software capable of both infringing and non-infringing uses. On July 27, 2005, the Supreme Court in MGM v. Grokster held that while P2P software is capable of non-infringing uses, if a distributor “induces” infringement, as shown by clear expression or other affirmative steps, it is liable for the resulting acts of end-user infringement. Libraries and other fair use advocates applauded the Court’s failure to overturn the landmark 1984 “Sony Betamax” ruling that the distributor of a technology with both infringing and non-infringing uses is not liable for infringement by the end user.

Fair use issues are intertwined with digital rights management ("DRM") and Digital Millennium Copyright Act ("DMCA") issues. For more information on those issues, please see the DRM and DMCA sections of our web site.

Materials

The following information will help AALL members understand the fair use doctrine and how it affects libraries and librarians.

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