To the uninitiated, copyright law can seem like a confusing, perhaps overwhelming minefield of potential lawsuits and other problems just waiting to happen. It can be intimidating to see scary FBI warnings before watching a movie on DVD (if anyone still even does that) or to read cryptic copyright notices claiming “All Rights Reserved.” Even for those who deal with copyright issues regularly, the legal landscape can be quite complex and nuanced, making it difficult to predict outcomes in advance for certain unanswered questions.
Modern universities, in particular, regularly confront a variety of thorny copyright issues. Due to rapid advances in technology, today’s students and professors have unprecedented access to vast amounts of content on an ever-growing number of platforms and devices. Similarly, modern technology has enabled people to create content and distribute it to a huge global audience with only a modest investment of time and resources. For example, “Studio C”’s famous soccer shootout video featuring the legendary Scott Sterling has now been viewed over 20 million times on YouTube alone. (By comparison, the 2014 World Series had fewer than 14 million viewers.)
In the current digital era, the potential for running afoul of copyright law has never been higher. Many newcomers to copyright law are surprised to discover just how much content is subject to copyright protection, how broad the rights granted to copyright owners are, and how stiff the penalties for copyright infringement are. Just ask Joel Tenenbaum, a former Boston University student who was ordered to pay $675,000 in 2013 for illegally downloading music and sharing it online.
The broad rights granted to copyright owners are subject to some important limitations and exemptions, though. Most notably, the doctrine of fair use allows certain uses of copyrighted works without the need to obtain permission from the copyright owner, especially “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” (17 U.S.C. § 107.) The copyright statute sets forth the following four factors, which need to be analyzed and balanced carefully in every fair use case: 1. the purpose and character of the use; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for the work.
As an institution of higher education, we rely on the doctrine of fair use every single day to carry out our educational mission. This doctrine is an essential part of the work we do in the classroom, the research laboratory, the design studio, the concert hall and many other places on campus. Without fair use, much of what we do might otherwise constitute copyright infringement.
But fair use is not an excuse to ignore the law or to behave irresponsibly. Although educational uses are favored under the statute, professors and students do not have carte blanche to appropriate whatever content they wish simply because they are a part of a nonprofit educational institution. Before asserting a claim of fair use in a particular case, the user should conduct a careful review and analysis of the four statutory fair use factors in good faith, to make an informed decision in each case. The BYU Copyright Licensing Office provides a Fair Use Checklist to help users conduct such analyses and save the results for future reference, when needed.
After conducting an informed fair use analysis in good faith, faculty and students should feel comfortable asserting fair use in appropriate circumstances. In some cases, a copyright owner may disagree with a particular fair use conclusion, and a court may need to resolve the issue. Such disputes are a normal part of the process, and help to define the contours of the fair use exemption for everyone.
February 23–27 marks Fair Use Week, which is an annual celebration of the doctrine of fair use coordinated by the Association of Research Libraries. We are delighted to join this celebration here at Brigham Young University. If you have questions about fair use or other copyright issues, please contact the BYU Copyright Licensing Office.
Peter M. Midgley
BYU Director of Copyright Licensing Office