This week is Fair Use/Fair Dealing Week! Fair use is the legal concept that allows the use of copyrighted materials without permission from the copyright holder under certain circumstances. From a 
student using a quotation from a book in their essay to a playwright parodying pop culture, we encounter fair use every day.
The Association of Research Libraries celebrates Fair Use Week/Fair Dealing Week with a series of events from February 26 through March 1. From webinars to office hours to game shows, there are lots of events happening this week to help you learn more about fair use and celebrate fair use week!
What is Fair Use?
The concept of fair use, or fair dealing in Canada, is based in copyright law. In the United States, section 107 of the U.S. Copyright Act has four factors used to determine whether something is fair use.
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The law also says that it is fair use, and not an infringement of copyright, when something is used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. §107
These factors and categories of use are guidelines used by the courts to make a case-by-case determination of whether something is copyright infringement or fair use. Generally there is no set amount of a work (30 seconds, 2 minutes, 10%, 15 pages, 1 paragraph) that constitutes proper fair use. Ask: Am I using more than I need? Working through the four factors will assist you in making a determination. 17 U.S.C. §107
Why do we have Fair Use?
Fair use promotes freedom of expression, allows for the development of new technologies, enables scholarship, and empowers creativity. It seeks to balance the rights of the copyright holder with these broader needs. Without fair use we wouldn’t be able to quote articles in research papers, show an image of art we are critiquing in a presentation, make fun of popular culture, or record history.
How does Fair Use work with new technologies such as text data mining (TDM)and Artificial Intelligence (AI)?
With new technologies comes new and interesting issues in copyright. The laws impacting these technologies often develop along with the technologies. For technologies such as text data mining (TDM), there is legal precedence in favor of fair use. When performing TDM, some of the materials used may be under copyright. Would TDM be considered as fair use? As always, it depends. In 2015, the Association of Research Libraries wrote an issue brief exploring this issue and finding that many courts deemed TDM to be fair use, especially when the materials mined were not shared as a whole or in large portions online. The Digital Millennium Copyright Act does not allow people to circumnavigate technical protection measures controlling access to copyrighted works. However, the Librarian of Congress can make temporary exemptions to this part of the Act if people or organizations show that they are “adversely affected by the prohibition … in their ability to make noninfringing uses” such as those that would be fair use. 17 U.S.C. § 1201. In 2020, the Authors Alliance, the Library Copyright Alliance, and the American Association of University Professors, successfully petitioned the Copyright Office (part of the Library of Congress) to create such an exemption to allow researchers to circumnavigate these protection measures and conduct text data mining. These exemptions (one for research on literary works that are distributed electronically and one for motion pictures) are good for three years and expire in fall, 2024.
In July, 2023, the same group petitioned to renew and expand the exemptions. The current exemptions allow researchers to only share the corpus they used for text data mining with other researchers for “collaboration and verification.” They would like the Copyright Office to expand this sharing exemption so that other researchers who are not direct collaborators can conduct their own text data mining. The Copyright Office has recommended the exemptions be renewed. The office is also currently collecting comments about the expansion the group requested. The comment period will end on March 19, 2024, after which the Office will review the comments and decide what to do next (approve the rule, make changes to the proposed rule, or withdraw the rule).
Fair Use, Copyright, and Generative AI
One issue now before the courts is copyright and generative AI, and its use in TDM. An outline of the issues can be found in the Congressional Research Service report, Generative Artificial Intelligence and Copyright Law. A key issue in United States copyright law centers on whether the employment of copyrighted materials to train generative artificial intelligence models constitutes copyright infringement. This question hinges on whether such usage can be considered fair use. Many cases seeking an answer to this question are ongoing before the courts. They involve well known authors (John Grisham), author groups (The Authors Guild), newspaper publishers (The New York Times), companies (Thomson Reuters, Getty Images) and many more parties. The outcomes in these cases will continue to shape the future of copyright and fair use.
The Library Copyright Institute and the Authors Alliance will provide a one hour discussion about fair use in text data mining and AI on Wednesday, February 28, 2024, at 1:00 PM EST. Learn more and sign up here.
Catholic University Libraries
Feel free to check out our Copyright and Beyond Research Guide and specifically, our Fair Use page.
Further Reading
American Library Association Fair Use
https://libguides.ala.org/copyright/fairuse
Fair Use / Fair Dealing Week
https://www.fairuseweek.org/
Fair Use Fundamentals
https://www.fairuseweek.org/resources/
U.S. Copyright Law, Section 107
https://www.copyright.gov/title17/92chap1.html#107
The Association of Research Libraries
Need a consultation? Contact Kevin Gunn, Coordinator of Digital Scholarship, 202-319-5504, gunn@cua.edu.