We now come to the infamous fair use doctrine, probably the best known American copyright law doctrine and also a very uniquely American invention, a creation of the United States Federal Courts. The fair use doctrine is often described as the most troublesome or the most problematic doctrine in all of copyright law and this is for one important reason that we need to understand. It's because it is an open-ended doctrine. I'll explain in a minute what exactly that means, but we have to keep that in mind and all discussions of the fair use doctrine. The fair use doctrine in the United States was entirely a creation of the courts. It originated in a very famous 19th decision by Justice Joseph Story known as Folsom versus Marsh which had to do with the copywriting a publication relating to George Washington's letters and a copy of it, and we don't have to get into the details of it, but in the process of elaborating on whether the copying of those letters was an infringement or not, Justice Story develops what is today the modern fair use doctrine by looking at the various factors that a court should consider in determining whether the taking of something by a defendant amounts to an infringement or not in light of its purposes and the overall circumstances. Ever since Folsom versus Marsh, until 1976, the fair use doctrine was never codified in the United States copyright statute. It remained a doctrine that was entirely policed by courts. Meaning that it was a doctrine that evolved to judicial decision-making through the precedence of the federal courts. Then in 1976 when Congress enacted a comprehensive revision of the copyright statute, it codifies the fair use doctrine. But it's very important to note what Congress does when it codified the fair use doctrine in 1976. Unlike a whole host of other areas, where Congress was jumping in the statute and trying to change the law, and trying to say that this is what the law should be because we have thought it out and we have discussed the matter with different industry groups. With the fair use doctrine Congress says, "We're going to put in place what courts have already been doing and very importantly, we want courts to continue to do what they have been doing namely: developing the law flexibly through individual cases, developing it through precedent rather than taking the wording of the statute in a very literal and rigid sets." So, the flexibility that pre-existed, the 1976 codification wasn't theory meant to continue post-1976 as well. So, in practice, Congress did not intend the functioning of the fair use doctrine to change despite its codification. It wanted it to develop in this flexible pattern. Now, what exactly does it mean for the law to develop any flexible pattern? Here, we have to differentiate between two major and well-known methods of lawmaking that we see in the United States. One is called the common law method of law development. In the common law method of law development, courts develop the law through individual rules that they lay down in the process of deciding individual disputes. So, we see this in areas like tort law, property law, contract law. Courts develop the law from the context of individual disputes and they rely on past precedence which they modify as the facts of different cases change in the dispute before them. That is the common law process of development. Lawmaking happens entirely through the courts, the legislature or the executive never intervenes in the common law method of development. This is in contrast to the statutory method of development where, the legislature and at the federal level congress steps in and says," No, we are the primary lawmaking body and we are going to say what the law is." In this method of lawmaking and the statutory method of lawmaking, courts assume a secondary position where their role is to do nothing more than interpret and apply the statute, not necessarily make the law. So, the distinction is between courts adopting a lawmaking function in the common law method versus they're adopting a law interpreting and law applying function in the statutory method. The fair use doctrine historically and in theory post the codification as well was meant to remain a law that was developed through the common law method. So, even though Congress put in in the statute, different elements of the fair use doctrine it wanted courts to take primary responsibility and continue to make the law in developing fair use. That's the first and most important thing to remember. It also sets US copyright law apart from the laws of copyright in almost all other countries because it places a significant amount of confidence and trust in the courts to develop the law, whereas in most other countries it's the legislature, the parliament that jumps in and says, "This is what the general limitations should be, courts you can do nothing more than interpret it." With that, let's now look at what exactly Congress said. So, Congress, when it codified in what is known as Section 107, the fair use doctrine put in place the four factors that are called the four fair use factors and it drew these from prior fair use precedents. So remember, Congress did not craft these four factors out of thin air. Congress instead drew them from precedents that existed, from prior court decisions. What are these four factors? Well, the first one is the purpose and character of the use to which the work is put, including Congress says, "Whether the use is commercial or not, right?" That's the first factor called, the purpose and character of the use. The second factor relates to the nature of the copyrighted work. This is the nature of the work the court examines normally, what kind of work it is, what its content is, how original is it, how much fat does it have, how much idea does it have, how creative is it. The third factor is the amount and substantiality of the copying in relation to the copyrighted work as a whole. So, the court is to look at how much of the original protected work was taken in the process of copying. So, the denominator is meant to be the copyrighted work and the numerator the amount taken in the act of copying. The fourth factor is the effect of that copying on the current and prospective market or value of the work, it's called the market effect factor where the court is to look at what the effect of that copying is on the market for the original. Now, these are the four factors that Congress put in in its codification, but Congress was very clear that: A, these factors are not to be considered in literal rigid terms and two, that they're not meant to be exhaustive. That since the fair use doctrine is developed by courts, in the common law method, they could consider additional things or they could interpret the language of these four factors in a rather open-ended way. Again, as I said, this is in contrast to other countries that do not have an open-ended fair use doctrine. Instead, in other countries, for example, the United Kingdom has a statutory general exception that is contained in a specific provision of its copyright act that was created by parliament, not by courts. It has a significantly higher level of rigidity. It is very tightly worded and that general exception in a lot of commonwealth countries that follow the UK model and in the UK, is called the fair dealing exception. It's very specific. So, courts applying it no longer apply these broad four factors, instead, they have to pass the specific language that the legislature put in, in tailoring the provision. Now, if one compares the American flexible fair use standard and it's four open-ended factors with the more rigid statutory fair dealing, both have their advantages and disadvantages. Since we're dealing with the fair use doctrine, let's talk about what its clear advantages and what its clear disadvantages. What is its clear advantage? Well, it's clear advantage is that there's a good amount of flexibility and creativity for courts to adapt the doctrine as technology emerges and develops into the future. In other words, courts don't have to go back to Congress and say, "Can you please help us, there's a new technology and we don't know how to deal with it." So, for instance, dealing with search engines or dealing with extensive amount of digital copying. Courts were able to take the fair use doctrine and mold it to the new technological context in a way that there wouldn't have been able to do if there were a rigid fair dealing approach. But what's the disadvantage? Well, the disadvantages are rather obvious one, which is because it's flexible, a lot hinges on what courts are likely to say especially if one is testing the boundaries of the doctrine. What this means is that the American fair use doctrine relies very heavily on litigation. Getting to litigation is often essential to know whether something is fair use or not. What this then means is that determining whether something is fair use is often costly because getting into court involves hiring lawyers, it involves getting the court to actually adjudicate the matter which is not costless. Now, this doesn't mean though at the same time that it's impossible to know whether something is fair use. Of course, there are many uses that one can determine upfront is very likely to be called a fair use is almost certain to fall within the category of fair use. But it's just like when one comes closer to the boundaries and when one actually has to apply the four factors to every individual instance when comes to determine that litigation is often essential to get the level of clarity and assurance that what one wants to determine whether something is fair use. Now obviously, it's a matter of balancing the advantages and disadvantages, and the American system determined that on balance, keeping it open-ended and in a flexible manner to allow the law develop is more advantageous than a rigid approach. That's the basics of American fair use in the way in which it's come to be structured and applied today. Let's now talk about how it actually applies in different contexts.
