Fair Use on the Internet

Publication Date: May 2002

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

The originating objective of copyright, as stated in the Constitution, was to promote the progress of science and the useful arts. Rewarding the labor of authors is viewed as furthering that objective. The Copyright Act serves this two-tier purpose by vesting in authors of protected works certain exclusive rights. The unauthorized use of copyrighted material constitutes an infringement of these rights, unless the use is excused by a statutory exception. By limiting these rights, the Copyright Act attempts to strike a fair balance between an author's exclusive rights and the public's interest in using copyrighted material. The fair use defense, a statutory exception to a copyright holder's exclusive rights, is integral to obtaining this balance, as it permits courts to avoid rigid application of a copyright holder's exclusive rights, when, on occasion, it would undermine the primary purpose of the Copyright Act.

The advent and spread of Internet technologies pose new challenges to Congress and the courts in maintaining a balance between the free flow of information over the Internet while still protecting intellectual property rights. The application of the fair use doctrine is one way courts endeavor to strike a proper balance.

In assessing whether a use of a copyrighted work is a "fair use," courts weigh four statutory factors (1) the purpose and character of the use, (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 the copyrighted work.

A bright line approach to fair use is difficult, if not impossible to formulate, as courts examine fair use on a case by case basis. However, it appears that the new digital environment has not caused the courts to abandon or significantly deviate from traditional fair use analysis. Courts appear to be applying the fair use factors in a technologically neutral manner.

Specifically, courts have held web sites and other internet service providers liable for copyright infringements conducted through various internet-related functions, such as posting, linking, file sharing and storage, the maintenance of electronic bulletin boards, and video streaming. Fair use was successfully invoked in a case involving the creation and display of thumbnail images. This report reviews the development of fair use on the Internet, and will be updated as circumstances warrant.