There is a lot happening in fair use these days, even as we are still waiting for a decision in the Georgia State copyright infringement v. fair use case.
One of the realities of modern political campaigning is that candidates like to use popular music or other material to increase the energy and appeal of campaign events or advertisements. And they often do so without authorization, causing some content owners to complain. The Republican primary this year offers two examples, the comparison of which is instructive. First, Mitt Romney ran ads using a short clip of Tom Brokow reporting, on NBC News back in 1997, about Newt Gingrich being disciplined by the House of Representatives. NBC and Brokow complained, and the Romney camp explicitly invoked fair use as their defense. Then on Tuesday came reports that a lawsuit has been filed against Newt Gingrich for unauthorized performances of the song “Eye of the Tiger” (the theme from Rocky III) at campaign events. I have not yet seen any response from the Gingrich camp about the lawsuit, but I have to say I think Romney’s use is more defensible as a fair use than is Gingrich’s.
The news clip Romney used is a straightforward, factual report of an action taken by the U.S. Congress. So the use of the news item does seem like fair use. And Tom Brokow may be a celebrity, but his publicity right surely cannot extend to suppress news reports if they are repeated in contexts he does not like; the messenger should not be allowed that kind of control over the message, when the message is a matter of public interest.
On the other hand, Gingrich’s use of the Rocky song is just to amp up the energy at rallies and deliver a general “comeback” message. It is not educational, transformative, or, in itself, a matter of public interest. It is precisely the kind of use for which a license could have, and probably should have, been sought.
More relevant to fair use in educational contexts is the recent opinion from the General Counsel of the U.S. Patent and Trademark Office addressing the question of whether it is fair use for patent examiners to provide unauthorized copies of research articles to patent applicants during the examination process. There are a lot of parallels here to the distribution of course readings to students enrolled in a particular course, so I expected an equivocal opinion. But the USPTO finds that this practice is clearly fair use, and argues that three of the fair use factors favor that finding, while the remaining factor, amount, is neutral, even though entire works, assuming a journal article is the entire work for fair use purposes, are at least sometimes distributed to applicants. Even more surprising, the PTO rejects consideration of a licensing market when analyzing the fourth factor, finding that such a market for the PTO’s use is not “cognizable” (even though I am sure the CCC would be willing to sell such licenses). This ruling could be an interesting precedent for academic cases; I hope it is brought to Judge Evans’ attention in the GSU case. Can universities likewise argue that they too can ignore the availability of licenses when making a fair use determination about course readings?
It is worth noting that the PTO opinion puts a lot of stress on the “noncommercial, governmental purpose” of the use. I am not disputing the value of that purpose at all, but I would point out that section 107 of the Copyright Act does not mention “governmental” use as one of its exemplars of fair use. On the other hand, five of the six exemplars — criticism, comment, teaching, research and scholarship — are clearly educational uses. If the PTO thinks they have a good case for fair use, isn’t ours even stronger?
Last, but very far from least, is the release this past week of the Code of Best Practices in Fair Use for Academic and Research Libraries. The Code represents a long process of consultation with librarians to determine what they think are best practices around core library functions. It is a “practice community” document, rather than a set of negotiated guidelines. One of the best descriptions of the Code is this one from University of Minnesota “Copyright Librarian” Nancy Sims.
I won’t repeat Nancy’s excellent points about the Code here, except to make two small comments.
First, the Code is not legal advice. Although I was part of a group of lawyers who reviewed the drafts, we never declared that all the practices outlined were absolutely fair use or entirely without risk for the very simple reason that fair use does not work that way. The Code is designed to facilitate careful thought about specific situations in libraries and consideration of relevant practices. It should help libraries maintain a balanced view of how fair use works in our profession, but it is not a bright line rule or final arbiter.
Second, the eight principles should always be read with the limitations and enhancements that accompany them in the Code. This too is a reflection of what the Code is about — deep reflection about how to responsibly provide our core services. The librarians who participated in the development of the Code (including Nancy) provided a wonderful framework for good decision making, and it would be a disservice to them not to take the whole framework seriously. There are no shortcuts in fair use, but there are some very helpful sign posts, including this new Code.