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The Code of Best Practices in Fair Use for Media Literacy Education -- Publications -- Center for Social Media at American University
Law provides copyright protection to creative works in order to foster the creation of culture. Its best known feature is protection of owners’ rights. But copying, quoting, and generally re-using existing cultural material can be, under some circumstances, a critically important part of generating new culture. In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators to encourage them to produce culture; at the same time, we give other creators the chance to use that same copyrighted material, without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work.
Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 170 years. Where it applies, fair use is a user’s right. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. New creation inevitably incorporates existing material. As copyright protects more works for longer periods than ever before, creators face new challenges: licenses to incorporate copyrighted sources become more expensive and more difficult to obtain—and sometimes are simply unavailable. As a result, fair use is more important today than ever before.
Fair use is flexible. It is not uncertain and it is not unreliable.
Copyright law does not exactly specify how to apply fair use, and that gives the fair use doctrine a flexibility that works to the advantage of users. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means ta
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