United States Code/Title 17/Chapter 1/Section 107
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Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
- (1) the purpose and character of the use, including whetherksuch 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
-SOURCE-
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101-650, title VI, Sec. 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102-492, Oct. 24, 1992, 106 Stat. 3145.)
-MISC1-
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
General Background of the Problem. The judicial doctrine of fair
use, one of the most important and well-established limitations on
the exclusive right of copyright owners, would be given express
statutory recognition for the first time in section 107. The claim
that a defendant's acts constituted a fair use rather than an
infringement has been raised as a defense in innumerable copyright
actions over the years, and there is ample case law recognizing the
existence of the doctrine and applying it. The examples enumerated
at page 24 of the Register's 1961 Report, while by no means
exhaustive, give some idea of the sort of activities the courts
might regard as fair use under the circumstances: "quotation of
excerpts in a review or criticism for purposes of illustration or
comment; quotation of short passages in a scholarly or technical
work, for illustration or clarification of the author's
observations; use in a parody of some of the content of the work
parodied; summary of an address or article, with brief quotations,
in a news report; reproduction by a library of a portion of a work
to replace part of a damaged copy; reproduction by a teacher or
student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or
reports; incidental and fortuitous reproduction, in a newsreel or
broadcast, of a work located in the scene of an event being
reported."
Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has
ever emerged. Indeed, since the doctrine is an equitable rule of
reason, no generally applicable definition is possible, and each
case raising the question must be decided on its own facts. On the
other hand, the courts have evolved a set of criteria which, though
in no case definitive or determinative, provide some gauge for
balancing the equities. These criteria have been stated in various
ways, but essentially they can all be reduced to the four standards
which have been adopted in section 107: "(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."
These criteria are relevant in determining whether the basic
doctrine of fair use, as stated in the first sentence of section
107, applies in a particular case: "Notwithstanding the provisions
of section 106, the fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of
copyright."
The specific wording of section 107 as it now stands is the
result of a process of accretion, resulting from the long
controversy over the related problems of fair use and the
reproduction (mostly by photocopying) of copyrighted material for
educational and scholarly purposes. For example, the reference to
fair use "by reproduction in copies or phonorecords or by any other
means" is mainly intended to make clear that the doctrine has as
much application to photocopying and taping as to older forms of
use; it is not intended to give these kinds of reproduction any
special status under the fair use provision or to sanction any
reproduction beyond the normal and reasonable limits of fair use.
Similarly, the newly-added reference to "multiple copies for
classroom use" is a recognition that, under the proper
circumstances of fairness, the doctrine can be applied to
reproductions of multiple copies for the members of a class.
The Committee has amended the first of the criteria to be
considered - "the purpose and character of the use" - to state
explicitly that this factor includes a consideration of "whether
such use is of a commercial nature or is for non-profit educational
purposes." This amendment is not intended to be interpreted as any
sort of not-for-profit limitation on educational uses of
copyrighted works. It is an express recognition that, as under the
present law, the commercial or non-profit character of an activity,
while not conclusive with respect to fair use, can and should be
weighed along with other factors in fair use decisions.
General Intention Behind the Provision. The statement of the fair
use doctrine in section 107 offers some guidance to users in
determining when the principles of the doctrine apply. However, the
endless variety of situations and combinations of circumstances
that can rise in particular cases precludes the formulation of
exact rules in the statute. The bill endorses the purpose and
general scope of the judicial doctrine of fair use, but there is no
disposition to freeze the doctrine in the statute, especially
during a period of rapid technological change. Beyond a very broad
statutory explanation of what fair use is and some of the criteria
applicable to it, the courts must be free to adapt the doctrine to
particular situations on a case-by-case basis. Section 107 is
intended to restate the present judicial doctrine of fair use, not
to change, narrow, or enlarge it in any way.
Intention as to Classroom Reproduction. Although the works and
uses to which the doctrine of fair use is applicable are as broad
as the copyright law itself, most of the discussion of section 107
has centered around questions of classroom reproduction,
particularly photocopying. The arguments on the question are
summarized at pp. 30-31 of this Committee's 1967 report (H.R. Rep.
No. 83, 90th Cong., 1st Sess.), and have not changed materially in
the intervening years.
The Committee also adheres to its earlier conclusion, that "a
specific exemption freeing certain reproductions of copyrighted
works for educational and scholarly purposes from copyright control
is not justified." At the same time the Committee recognizes, as it
did in 1967, that there is a "need for greater certainty and
protection for teachers." In an effort to meet this need the
Committee has not only adopted further amendments to section 107,
but has also amended section 504(c) to provide innocent teachers
and other non-profit users of copyrighted material with broad
insulation against unwarranted liability for infringement. The
latter amendments are discussed below in connection with Chapter 5
of the bill [Sec. 501 et seq. of this title].
In 1967 the Committee also sought to approach this problem by
including, in its report, a very thorough discussion of "the
considerations lying behind the four criteria listed in the amended
section 107, in the context of typical classroom situations arising
today." This discussion appeared on pp. 32-35 of the 1967 report,
and with some changes has been retained in the Senate report on S.
22 (S. Rep. No. 94-473, pp. 63-65). The Committee has reviewed this
discussion, and considers that it still has value as an analysis of
various aspects of the problem.
At the Judiciary Subcommittee hearings in June 1975, Chairman
Kastenmeier and other members urged the parties to meet together
independently in an effort to achieve a meeting of the minds as to
permissible educational uses of copyrighted material. The response
to these suggestions was positive, and a number of meetings of
three groups, dealing respectively with classroom reproduction of
printed material, music, and audio-visual material, were held
beginning in September 1975.
In a joint letter to Chairman Kastenmeier, dated March 19, 1976,
the representatives of the Ad Hoc Committee of Educational
Institutions and Organizations on Copyright Law Revision, and of
the Authors League of America, Inc., and the Association of
American Publishers, Inc., stated:
You may remember that in our letter of March 8, 1976 we told
you that the negotiating teams representing authors and
publishers and the Ad Hoc Group had reached tentative agreement
on guidelines to insert in the Committee Report covering
educational copying from books and periodicals under Section 107
of H.R. 2223 and S. 22 [this section], and that as part of that
tentative agreement each side would accept the amendments to
Sections 107 and 504 [this section and section 504 of this title]
which were adopted by your Subcommittee on March 3, 1976.
We are now happy to tell you that the agreement has been
approved by the principals and we enclose a copy herewith. We had
originally intended to translate the agreement into language
suitable for inclusion in the legislative report dealing with
Section 107 [this section], but we have since been advised by
committee staff that this will not be necessary.
As stated above, the agreement refers only to copying from
books and periodicals, and it is not intended to apply to musical
or audiovisual works.
The full text of the agreement is as follows:
AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT
EDUCATIONAL INSTITUTIONS
WITH RESPECT TO BOOKS AND PERIODICALS
The purpose of the following guidelines is to state the minimum
and not the maximum standards of educational fair use under
Section 107 of H.R. 2223 [this section]. The parties agree that
the conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain types
of copying permitted under these guidelines may not be
permissible in the future; and conversely that in the future
other types of copying not permitted under these guidelines may
be permissible under revised guidelines.
Moreover, the following statement of guidelines is not intended
to limit the types of copying permitted under the standards of
fair use under judicial decision and which are stated in Section
107 of the Copyright Revision Bill [this section]. There may be
instances in which copying which does not fall within the
guidelines stated below may nonetheless be permitted under the
criteria of fair use.
GUIDELINES
I. Single Copying for Teachers
A single copy may be made of any of the following by or for a
teacher at his or her individual request for his or her scholarly
research or use in teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not
from a collective work;
D. A chart, graph, diagram, drawing, cartoon or picture from a
book, periodical, or newspaper;
II. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy
per pupil in a course) may be made by or for the teacher giving
the course for classroom use or discussion; provided that:
A. The copying meets the tests of brevity and spontaneity as
defined below; and,
B. Meets the cumulative effect test as defined below; and
C. Each copy includes a notice of copyright.
Definitions
Brevity
(i) Poetry: (a) A complete poem if less than 250 words and if
printed on not more than two pages or, (b) from a longer poem, an
excerpt of not more than 250 words.
(ii) Prose: (a) Either a complete article, story or essay of
less than 2,500 words, or (b) an excerpt from any prose work of
not more than 1,000 words or 10% of the work, whichever is less,
but in any event a minimum of 500 words.
[Each of the numerical limits stated in "i" and "ii" above may
be expanded to permit the completion of an unfinished line of a
poem or of an unfinished prose paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing, cartoon
or picture per book or per periodical issue.
(iv) "Special" works: Certain works in poetry, prose or in
"poetic prose" which often combine language with illustrations
and which are intended sometimes for children and at other times
for a more general audience fall short of 2,500 words in their
entirety. Paragraph "ii" above notwithstanding such "special
works" may not be reproduced in their entirety; however, an
excerpt comprising not more than two of the published pages of
such special work and containing not more than 10% of the words
found in the text thereof, may be reproduced.
Spontaneity
(i) The copying is at the instance and inspiration of the
individual teacher, and
(ii) The inspiration and decision to use the work and the
moment of its use for maximum teaching effectiveness are so close
in time that it would be unreasonable to expect a timely reply to
a request for permission.
Cumulative Effect
(i) The copying of the material is for only one course in the
school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two
excerpts may be copied from the same author, nor more than three
from the same collective work or periodical volume during one
class term.
(iii) There shall not be more than nine instances of such
multiple copying for one course during one class term.
[The limitations stated in "ii" and "iii" above shall not apply
to current news periodicals and newspapers and current news
sections of other periodicals.]
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be
prohibited:
(A) Copying shall not be used to create or to replace or
substitute for anthologies, compilations or collective works.
Such replacement or substitution may occur whether copies of
various works or excerpts therefrom are accumulated or reproduced
and used separately.
(B) There shall be no copying of or from works intended to be
"consumable" in the course of study or of teaching. These include
workbooks, exercises, standardized tests and test booklets and
answer sheets and like consumable material.
(C) Copying shall not:
(a) substitute for the purchase of books, publishers'
reprints or periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by the same
teacher from term to term.
(D) No charge shall be made to the student beyond the actual
cost of the photocopying.
Agreed March 19, 1976.
Ad Hoc Committee on Copyright Law Revision:
By Sheldon Elliott Steinbach.
Author-Publisher Group:
Authors League of America:
By Irwin Karp, Counsel.
Association of American Publishers, Inc.:
By Alexander C. Hoffman.
Chairman, Copyright Committee.
In a joint letter dated April 30, 1976, representatives of the
Music Publishers' Association of the United States, Inc., the
National Music Publishers' Association, Inc., the Music Teachers
National Association, the Music Educators National Conference, the
National Association of Schools of Music, and the Ad Hoc Committee
on Copyright Law Revision, wrote to Chairman Kastenmeier as
follows:
During the hearings on H.R. 2223 in June 1975, you and several
of your subcommittee members suggested that concerned groups
should work together in developing guidelines which would be
helpful to clarify Section 107 of the bill [this section].
Representatives of music educators and music publishers delayed
their meetings until guidelines had been developed relative to
books and periodicals. Shortly after that work was completed and
those guidelines were forwarded to your subcommittee,
representatives of the undersigned music organizations met
together with representatives of the Ad Hoc Committee on
Copyright Law Revision to draft guidelines relative to music.
We are very pleased to inform you that the discussions thus
have been fruitful on the guidelines which have been developed.
Since private music teachers are an important factor in music
education, due consideration has been given to the concerns of
that group.
We trust that this will be helpful in the report on the bill to
clarify Fair Use as it applies to music.
The text of the guidelines accompanying this letter is as
follows:
GUIDELINES FOR EDUCATIONAL USES OF MUSIC
The purpose of the following guidelines is to state the minimum
and not the maximum standards of educational fair use under
Section 107 of H.R. 2223 [this section]. The parties agree that
the conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain types
of copying permitted under these guidelines may not be
permissible in the future, and conversely that in the future
other types of copying not permitted under these guidelines may
be permissible under revised guidelines.
Moreover, the following statement of guidelines is not intended
to limit the types of copying permitted under the standards of
fair use under judicial decision and which are stated in Section
107 of the Copyright Revision Bill [this section]. There may be
instances in which copying which does not fall within the
guidelines stated below may nonetheless be permitted under the
criteria of fair use.
A. Permissible Uses
1. Emergency copying to replace purchased copies which for any
reason are not available for an imminent performance provided
purchased replacement copies shall be substituted in due course.
2. (a) For academic purposes other than performance, multiple
copies of excerpts of works may be made, provided that the
excerpts do not comprise a part of the whole which would
constitute a performable unit such as a section, movement or
aria, but in no case more than 10% of the whole work. The number
of copies shall not exceed one copy per pupil.
(b) For academic purposes other than performance, a single copy
of an entire performable unit (section, movement, aria, etc.)
that is, (1) confirmed by the copyright proprietor to be out of
print or (2) unavailable except in a larger work, may be made by
or for a teacher solely for the purpose of his or her scholarly
research or in preparation to teach a class.
3. Printed copies which have been purchased may be edited or
simplified provided that the fundamental character of the work is
not distorted or the lyrics, if any, altered or lyrics added if
none exist.
4. A single copy of recordings of performances by students may
be made for evaluation or rehearsal purposes and may be retained
by the educational institution or individual teacher.
5. A single copy of a sound recording (such as a tape, disc or
cassette) of copyrighted music may be made from sound recordings
owned by an educational institution or an individual teacher for
the purpose of constructing aural exercises or examinations and
may be retained by the educational institution or individual
teacher. (This pertains only to the copyright of the music itself
and not to any copyright which may exist in the sound recording.)
B. Prohibitions
1. Copying to create or replace or substitute for anthologies,
compilations or collective works.
2. Copying of or from works intended to be "consumable" in the
course of study or of teaching such as workbooks, exercises,
standardized tests and answer sheets and like material.
3. Copying for the purpose of performance, except as in A(1)
above.
4. Copying for the purpose of substituting for the purchase of
music, except as in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice which
appears on the printed copy.
The problem of off-the-air taping for nonprofit classroom use of
copyrighted audiovisual works incorporated in radio and television
broadcasts has proved to be difficult to resolve. The Committee
believes that the fair use doctrine has some limited application in
this area, but it appears that the development of detailed
guidelines will require a more thorough exploration than has so far
been possible of the needs and problems of a number of different
interests affected, and of the various legal problems presented.
Nothing in section 107 or elsewhere in the bill is intended to
change or prejudge the law on the point. On the other hand, the
Committee is sensitive to the importance of the problem, and urges
the representatives of the various interests, if possible under the
leadership of the Register of Copyrights, to continue their
discussions actively and in a constructive spirit. If it would be
helpful to a solution, the Committee is receptive to undertaking
further consideration of the problem in a future Congress.
The Committee appreciates and commends the efforts and the
cooperative and reasonable spirit of the parties who achieved the
agreed guidelines on books and periodicals and on music.
Representatives of the American Association of University
Professors and of the Association of American Law Schools have
written to the Committee strongly criticizing the guidelines,
particularly with respect to multiple copying, as being too
restrictive with respect to classroom situations at the university
and graduate level. However, the Committee notes that the Ad Hoc
group did include representatives of higher education, that the
stated "purpose of the * * * guidelines is to state the minimum and
not the maximum standards of educational fair use" and that the
agreement acknowledges "there may be instances in which copying
which does not fall within the guidelines * * * may nonetheless be
permitted under the criteria of fair use."
The Committee believes the guidelines are a reasonable
interpretation of the minimum standards of fair use. Teachers will
know that copying within the guidelines is fair use. Thus, the
guidelines serve the purpose of fulfilling the need for greater
certainty and protection for teachers. The Committee expresses the
hope that if there are areas where standards other than these
guidelines may be appropriate, the parties will continue their
efforts to provide additional specific guidelines in the same
spirit of good will and give and take that has marked the
discussion of this subject in recent months.
Reproduction and Uses for Other Purposes. The concentrated
attention given the fair use provision in the context of classroom
teaching activities should not obscure its application in other
areas. It must be emphasized again that the same general standards
of fair use are applicable to all kinds of uses of copyrighted
material, although the relative weight to be given them will differ
from case to case.
The fair use doctrine would be relevant to the use of excerpts
from copyrighted works in educational broadcasting activities not
exempted under section 110(2) or 112, and not covered by the
licensing provisions of section 118. In these cases the factors to
be weighed in applying the criteria of this section would include
whether the performers, producers, directors, and others
responsible for the broadcast were paid, the size and nature of the
audience, the size and number of excerpts taken and, in the case of
recordings made for broadcast, the number of copies reproduced and
the extent of their reuse or exchange. The availability of the fair
use doctrine to educational broadcasters would be narrowly
circumscribed in the case of motion pictures and other audiovisual
works, but under appropriate circumstances it could apply to the
nonsequential showing of an individual still or slide, or to the
performance of a short excerpt from a motion picture for criticism
or comment.
Another special instance illustrating the application of the fair
use doctrine pertains to the making of copies or phonorecords of
works in the special forms needed for the use of blind persons.
These special forms, such as copies in Braille and phonorecords of
oral readings (talking books), are not usually made by the
publishers for commercial distribution. For the most part, such
copies and phonorecords are made by the Library of Congress'
Division for the Blind and Physically Handicapped with permission
obtained from the copyright owners, and are circulated to blind
persons through regional libraries covering the nation. In
addition, such copies and phonorecords are made locally by
individual volunteers for the use of blind persons in their
communities, and the Library of Congress conducts a program for
training such volunteers. While the making of multiple copies or
phonorecords of a work for general circulation requires the
permission of the copyright owner, a problem addressed in section
710 of the bill, the making of a single copy or phonorecord by an
individual as a free service for blind persons would properly be
considered a fair use under section 107.
A problem of particular urgency is that of preserving for
posterity prints of motion pictures made before 1942. Aside from
the deplorable fact that in a great many cases the only existing
copy of a film has been deliberately destroyed, those that remain
are in immediate danger of disintegration; they were printed on
film stock with a nitrate base that will inevitably decompose in
time. The efforts of the Library of Congress, the American Film
Institute, and other organizations to rescue and preserve this
irreplaceable contribution to our cultural life are to be
applauded, and the making of duplicate copies for purposes of
archival preservation certainly falls within the scope of "fair
use."
When a copyrighted work contains unfair, inaccurate, or
derogatory information concerning an individual or institution, the
individual or institution may copy and reproduce such parts of the
work as are necessary to permit understandable comment on the
statements made in the work.
The Committee has considered the question of publication, in
Congressional hearings and documents, of copyrighted material.
Where the length of the work or excerpt published and the number of
copies authorized are reasonable under the circumstances, and the
work itself is directly relevant to a matter of legitimate
legislative concern, the Committee believes that the publication
would constitute fair use.
During the consideration of the revision bill in the 94th
Congress it was proposed that independent newsletters, as
distinguished from house organs and publicity or advertising
publications, be given separate treatment. It is argued that
newsletters are particularly vulnerable to mass photocopying, and
that most newsletters have fairly modest circulations. Whether the
copying of portions of a newsletter is an act of infringement or a
fair use will necessarily turn on the facts of the individual case.
However, as a general principle, it seems clear that the scope of
the fair use doctrine should be considerably narrower in the case
of newsletters than in that of either mass-circulation periodicals
or scientific journals. The commercial nature of the user is a
significant factor in such cases: Copying by a profit-making user
of even a small portion of a newsletter may have a significant
impact on the commercial market for the work.
The Committee has examined the use of excerpts from copyrighted
works in the art work of calligraphers. The committee believes that
a single copy reproduction of an excerpt from a copyrighted work by
a calligrapher for a single client does not represent an
infringement of copyright. Likewise, a single reproduction of
excerpts from a copyrighted work by a student calligrapher or
teacher in a learning situation would be a fair use of the
copyrighted work.
The Register of Copyrights has recommended that the committee
report describe the relationship between this section and the
provisions of section 108 relating to reproduction by libraries and
archives. The doctrine of fair use applies to library photocopying,
and nothing contained in section 108 "in any way affects the right
of fair use." No provision of section 108 is intended to take away
any rights existing under the fair use doctrine. To the contrary,
section 108 authorizes certain photocopying practices which may not
qualify as a fair use.
The criteria of fair use are necessarily set forth in general
terms. In the application of the criteria of fair use to specific
photocopying practices of libraries, it is the intent of this
legislation to provide an appropriate balancing of the rights of
creators, and the needs of users.
AMENDMENTS
1992 - Pub. L. 102-492 inserted at end "The fact that a work is
unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors."
1990 - Pub. L. 101-650 substituted "sections 106 and 106A" for
"section 106" in introductory provisions.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
1990, see section 610 of Pub. L. 101-650, set out as an Effective
Date note under section 106A of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 106, 106A, 108, 118, 501,
504, 511 of this title; title 18 section 2319.