ARL Policy Notes
Observations from House Judiciary Subcommittee Hearing on Fair Use

The House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review and held another hearing on Tuesday, January 28th. This hearing focused exclusively on the scope of fair use and the Library Copyright Alliance (LCA) submitted a written statement in advance of the hearing.

Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case. Many of the statements made during the hearing, as well as the questions from Members, focused on the first factor, in particular the proper interpretation and application of whether a use has been “transformative.”

The hearing included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America). For the most part, the witnesses did not recommend any statutory changes to Section 107 of the Copyright Act, even when they did not agree with particular court rulings regarding fair use. All witnesses seemed to agree that the courts are in the best position to determine whether a use is fair. Below are some brief observations from the hearing.

Testimony from Witnesses

Professor Peter Jaszi spoke first and gave background to the fair use doctrine, noting that the “transformative use” test was considered “unified field theory.” He also spoke on how courts have applied fair use in ways that both foster future innovation and serve the public interest. He suggested that, despite criticisms to the contrary, the jurisprudence on fair use is fairly predictable and coherent. He opposed reform to fair use, but suggested that the doctrine could use support, such as through changes in the statutory damage regime.

Professor June Besek went next and argued that fair use has been expanding. She criticized the application of fair use that has allowed new business models, rather than just new works of authorship. She suggested that “transformative use” has caused confusion with derivative works and argued that the pendulum has moved too far in the direction of the users.

Naomi Novik spoke next, beginning with her background as a New York Times bestselling author who, prior to writing her first novel, wrote fan-fiction and was a remix artist. She analogized fan-fiction to telling stories around a campfire. She also argued that licensing is unrealistic for both the writers of fan-fiction as well as the original authors because of the time, money and legal concerns. She suggested that Congress should lower damages in order to make fair use less frightening for the everyday person. She also proposed an exemption for non-commercial uses, such as those telling their stories around a metaphorical campfire.

David Lowery, a singer/songwriter, followed and clearly stated that fair use is working for the music industry. He raised concerns, however, about two particular areas where he felt that there were efforts to expand fair use to uses he did not think were covered under the statute. These areas include remixing and lyric websites. He noted that some music genres, such as hip hop, continue to flourish under licensing and fair use need not be expanded to promote these works. He also asserted that lyric websites that include annotations of the lyrics are not fair use and argued that it is not hard to ask for permission.

Kurt Wimmer, the final witness on the panel, serves as general counsel of the Newspaper Association of America. He noted that newspapers are rightholders, but also are reliant on fair use. He noted that while he does not agree with every fair use decision, the courts are in the best position to make these determinations. He expressed some concerns about the breadth of recent court decisions regarding transformative uses, but cited his support for the Swatch v. Bloomberg case that came down in favor of Bloomberg’s fair use argument just the day prior.

Questions From Members

Following witness statements, several Members posed questions to the witnesses. These questions covered a wide range of issues, including, among others, how to define “transformative,” whether exporting the doctrine of fair use to other countries is appropriate, and whether fair use is currently working for all groups.

Conclusion

In general, it seemed that all witnesses agreed that the fair use doctrine should continue to be interpreted and applied by the courts and the proposed solutions to perceived areas of concerns could be done outside the scope of Section 107 (such as recalibration of damages). Although there was some disagreement between witnesses over whether particular uses would, or should, qualify as fair use, the witnesses agreed on the importance of this doctrine.

Fair use, of course, has been of critical importance in supporting libraries’ key functions and allowing it to serve its patrons. Although specific limitations and exceptions exist elsewhere in the Copyright Act, many of which libraries frequently use, fair use allows libraries to act where these specific exceptions are too narrowly drawn, where no exceptions exist, or when technological advances outpace the law. Although the Members at the hearing seemed to take a keen interest in fair use, given the testimony of witnesses, hopefully Congress will agree that fair use generally works well.

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