Fair Use and Higher Education:
Are Guidelines the Answer?

Kenneth D. Crews
Associate Professor
Indiana University School of Law—Indianapolis
IU School of Library and Information Science
Director, Copyright Management Center
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225

Telephone: (317) 274-4400
Fax: (317) 278-3326

In Academe 83 (November/December 1997): pp. 38-40

Copyright 1997, American Association of University Professors

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More than twenty years ago, Congress included in the statutes for the first time a provision on the fair use of copyright-protected works. ¹ The years of hearings, testimony, and debate leading to the Copyright Act of 1976 helped to make the university community aware that copyright law would affect activities of increasing importance to modern teaching. Two decades ago, the main concern centered on photocopying classroom handouts, course packets, and research materials. Today we face increasing numbers of fair-use questions having to do with digital works and electronic access.

In 1977 the AAUP Bulletin, the predecessor to Academe, carried an influential article on fair use by John C. Stedman of the University of Wisconsin Law School. ² Stedman's article became an early primer on copyright and fair use for a broad audience of faculty members. Stedman also worked with the American Association of University Professors (AAUP) to take a step that seemed small at the time but that proved later to be of enormous importance.

Stedman led the AAUP and the Association of American Law Schools (AALS) in public opposition to the so-called "Classroom Guidelines." ³ The guidelines, which attempted to define fair use in the context of photocopying for classroom handouts and research, were the product of negotiations among representatives of publishers, authors, and educators. The needs of higher education were not well represented or articulated in those guidelines. Stedman recognized that the guidelines were neither an accurate interpretation of the law nor a workable measure of fair use for higher education. When the guidelines appeared in congressional reports accompanying passage of the 1976 Copyright Act, expressions of concern from the AAUP and the AALS tempered the generally favorable discussion. ⁴

The AAUP's public opposition to the guidelines caught the attention of educators who slowly discovered that the meticulous and restraining standard in the guidelines further clouded and inhibited fair use. The AAUP's opposition did not suppress the guidelines or prevent their perpetuation. But it did help educators to recognize that fair use ought not be burdened with rigid and inflexible standards. Educators began to understand that they must scrutinize measures of fair use offered for their acceptance.

Today, the academic community is once again called on to look closely at the appropriateness of new guidelines for the next generation of technologies: digital imaging, multimedia production, and transmissions for distance learning. These guidelines are the work of the Conference on Fair Use, also known as Confu. Confu negotiators representing diverse points of view met for more than two years before proposing guidelines in an interim report issued in December 1996. ⁵

The report invited interested parties to indicate by June 1997 whether they would support or oppose the proposed guidelines. Twenty years ago, only two educational organizations publicly opposed the Classroom Guidelines. But the AAUP's almost isolated action two decades ago set an example. This year, dozens of educational organizations expressed their concern about the Confu guidelines.

The response has not been uniform. Many organizations support the new guidelines. But some leading organizations, such as the Association of American Universities, the American Council on Education, the American Library Association, and the Association of Research Libraries, oppose all of the Confu guidelines. Strangely, the AAUP, the model of critical reflection twenty years ago, was not present at the negotiating table during the Confu meetings. Nor did the AAUP respond to the invitation for comments on the proposed guidelines. ⁶

Organizations may choose not to participate in Confu or to put their reflections on the public record for many reasons. Regardless of whether they take a public stand, nearly every educational institution, professional society, and individual member of the academic community will eventually need to address fair use and consequently decide whether to accept or reject various guidelines. In making those decisions, they will have to grapple with the principles of fair use and the relative merits of any guideline for understanding and implementing fair-use law.

The Quest for Interpretive Certainty

The struggle over the acceptability of fair-use guidelines is a struggle over the acceptability of fair-use law itself. The central purpose of fair-use guidelines is to provide some interpretive certainty for the meaning of the broad and flexible law of fair use as applied to specific circumstances. The law of fair use established in the 1976 Copyright Act is a sweeping and general provision declaring at the outset that certain activities that might otherwise be infringements are not unlawful. The law is explicitly applicable to general pursuits of social value or pursuits that are closely aligned with the constitutional objective of copyright: "promoting the progress of science and the useful arts." The statute specifically gives the following activities the benefit of fair use: "criticism, comment, news reporting, teaching . . . scholarship, or research." The law does not, however, make all activities undertaken in connection with education, scholarship, and research fair use.

Whether an action is fair use depends on a balanced application of four factors: the purpose and character of the use, the nature of the copyrighted work being used, the amount and substantiality of the work used, and the effect of the use on the market for or value of that work. The statute gives nearly no elaboration on the meaning of these factors. Individuals seeking to abide by the law, and courts applying the law, must therefore determine what these factors mean in specific situations. Reasonable people can and do differ about that meaning and whether even the simplest activities are fair use. Reasonable people can debate whether photocopying, the making of transparencies, downloading from a World Wide Web site, or clipping for a multimedia work is fair use.

Recognizing the potential for differing interpretations of fair use, Congress provided important protection for librarians and educators who make a reasonable interpretation of fair use. The Copyright Act reduces the exposure of individuals to monetary damages in the event of an infringement, provided that the individual is part of a nonprofit educational institution and acted with a reasonable belief that his or her copying was fair use. ⁷

Nonetheless, many educators and librarians find the quest for a responsible position to be a burden. The desire for greater specificity and easier application of fair use motivated the creation of guidelines. Supporters and opponents of guidelines will vigorously debate their advantages and disadvantages. Consideration of any set of guidelines, however, ultimately begs this direct question: Why not just follow the law itself? The following reflections and principles can help to answer that question.

The Force of Law: Flexibility, Protection, and Balance

None of the fair-use guidelines has the force of law; only statutes and court rulings have that authority. None of the fair-use guidelines from the past or the present has been read into the law. Congress has never voted to make them law. Their appearance in congressional reports does not make them law. None of the few court cases that have looked at guidelines has read them into the law. ⁸ Professors seeking the standard to which they must adhere can look only to the law. Guidelines cannot offer a binding standard. Guidelines interpret the law, but they do not offer the only interpretation possible. They are also not necessarily the most appropriate interpretation for educators.

The law is a less complex measure of fair use than are most guidelines. The law of fair use depends chiefly on the four factors mentioned above; these factors are summarized and described in many different publications. Guidelines often depend on many more variables and include requirements and prohibitions that are not found in the law. For example, the Confu guidelines on production of multimedia works (a) restrict the length of time that a professor may keep and use the multimedia work, and (b) require professors to give notice that they are exercising fair use. No such obligations exist in the law, and these two requirements are in addition to a long list of conditions related to quantity, purpose of use, and market effects.

The law of fair use is flexible to meet changing needs and circumstances, while fair-use guidelines are rigid. Congress meant for the law to be flexible, and court rulings have affirmed that generalizations about fair use are simply not valid. For example, the measure of the amount of a work that may be copied is highly fluid. But guidelines usually include rigorous quantity limits that do not reflect the robust character of fair use. One court has ruled that reprinting three hundred words from a work was too much, while another case allowed several thousand words. ⁹ These decisions are not inconsistent; they show that fair use depends on the circumstances of each use.

Staying within fair-use law prevents infringement, but the guidelines do not offer even a "safe harbor." Most guidelines, including the Confu guidelines, are by their own description "minimal" measures of fair use, implying that they will protect compliant users from infringement liability. But many copyright owners have refused to call some guidelines a safe harbor, reserving the right to bring infringement actions even against an individual or institution that stays carefully within the limits. If even minimal guidelines are not a safe harbor, they are not a useful measure of fair use.

Copyright law provides important protection for well-meaning faculty and others who apply fair use, but guidelines offer no protection. When members of university and library communities can show that they had "reasonable grounds" to believe that their use of materials was fair, the Copyright Act will exonerate the individual and the institution from some of the monetary liability that may result if the copying is found to be an infringement. ¹⁰ Congress structured the law to encourage professors, librarians, and others in the non-profit educational arena to pursue fair use in good faith. The reduction of damages should motivate positive and constructive application of fair use and discourage most realistic threats of litigation; it should also offer peace of mind. In granting the reduction of damages, Congress recognized the education community's lingering uneasiness and acknowledged the importance of advancing knowledge through a reasonable, balanced, and good-faith understanding of rights and responsibilities. No set of guidelines can offer the same protection.

Each member of the higher education community has a duty to learn the fundamentals of fair use and apply them in a reasonable manner for the advancement of teaching and research. Congress created the law of fair use. Congress provided flexibility and balance. Congress also offered important, but often overlooked, protection for academics seeking to apply the law to educational objectives.

While the lure of guidelines is compelling, they lack many of the legal and practical advantages of the law. The AAUP's letter to Congress criticizing the Classroom Guidelines remains a valid commentary on the continuing need for flexible standards:

A return to the law, rather than reliance on guidelines, is a more reasonable avenue for understanding fair use. The law provides benefits and even certainty that no guidelines thus far have been able to offer. The acceptance of rigid guidelines is a rejection of those attributes of fair use that were meant to benefit teaching and learning. The AAUP and all of its members must act to protect fair use; neglect of fair use is an erosion of higher education.

NOTES

1. Copyright Act of 1976, 17 U.S.C. Section 107. Return to text.

2. John C. Stedman, "The New Copyright Law: Photocopying for Educational Use," AAUP Bulletin 63 (February 1977): 5-16. He also wrote two related articles of interest: John C. Stedman, "Academic Library Reserves: Photocopying and the Copyright Law," AAUP Bulletin 64 (September 1978): 142-149; and John C. Stedman, "Copyright Developments in the United States," AAUP Bulletin 62 (Autumn 1976): 308-319. Return to text.

3. The original guidelines, entitled "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, " along with mention of opposition to them from the AAUP and AALS, appear at Copyright Law Revision, H.Rep. 94-1476, 94^th Cong., 2d Sess., 1976, pp. 68-72. Return to text.

4. This author has recounted events leading to the creation and promotion of the Classroom Guidelines: Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education (Chicago: The University of Chicago Press, 1993): 30-36. Return to text.

5. Conference on Fair Use: An Interim Report to the Commissioner (Washington, D.C.: U.S. Patent and Trademark Office, 1996). Return to text.

6. An appendix to the Interim Report includes a list of participating organizations. For the responses of various organizations to the guidelines—favorable or not—see the appendix. Return to text.

7. Copyright Act of 1976, 17 U.S.C. Section 504 (C)(2). Return to text.

8. For example, a court ruling against Kinko’s Copies from 1991 applied the Classroom Guidelines to the facts, but only after the court applied the four factors and reached its conclusion. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). Return to text.

9. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987). Return to text.

10. See note 7. Return to text.

11. From the AAUP letter to Congressman Robert W. Kastenmeier, May 25, 1976, reprinted at Appendix C to Stedman’s 1977 article cited in note 2. Return to text.

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COPYRIGHT NOTICE: Reprinted from Academe: Bulletin of the American Association of University Professors, Vol. 83, No. 6 (November-December 1997). This article is included on this site by agreement between the author and American Association of University Professors. Persons seeking permission to use this work should contact the AAUP.

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