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Program National Recording Preservation Plan

Fair Use & Its Impact on Audio Preservation and Access

From the "Library of Congress National Recording Preservation Plan":

"Fair use," originally a common law doctrine, was incorporated into federal law through the 1976 Copyright Act as "one of the principal means by which copyright accommodates First Amendment values," according to legal scholar June M. Besek.

Specifically, section 107 of the Copyright Act stipulates that fair use of copyrighted materials, including the act of reproducing them, does not constitute copyright infringement even if permissions of copyright owners are not obtained. The law identifies purposes for which fair use may be applicable, "such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

Additionally, the Act specifies four factors to be considered in determining whether any particular use of copyrighted materials may be permitted under the fair use doctrine:

  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."

In a study commissioned by the National Recording Preservation Board, Besek asserts, "Preservation and dissemination by a non-profit digital library or archives for scholarly or research purposes would be the kind of use favored by the law." The House report that accompanied the 1976 revisions to the Copyright Act specifically notes that "the making of duplicate copies for purposes of archival preservation certainly falls within the scope of fair use. The Copyright Office report on bringing federal copyright protect to pre-1972 recordings states, "Because of limitations of section 108, libraries and archives increasingly rely on fair use in undertaking digital preservation, and the scope of the fair use doctrine in this context has never been adjudicated."

Despite these opinions, a recent survey of librarians found a "lack of consensus about applying fair use" that resulted in "[c]ompromised integrity and utility of collections, for failure to preserve and make access copies." Similarly, the National Recording Preservation Board's task force on copyright that informed this plan has concluded that it was not "clear if concepts such as fair use (section 107) may be applied to permit certain types of preservation or access activity." Besek cautions that "[t]here is no formula to determine whether a use is fair" and warns that because "most other countries do not have a fair use doctrine," streaming by a library that might be protected as fair use in the U.S. "requires consideration of potential exposure under foreign laws."

The application of fair use principles to archival sound recording preservation activities can be determined only on a case-by-case basis.

Additional Information

Library of Congress Reports

In December 2005, the Library of Congress issued a report, written by June M. Besek, titled "Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives External."

In March 2009, the Library of Congress issued a report, written by June M. Besek, titled "Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives."

In September 2009, the Library of Congress issued a report, prepared by the Program on Information Justice and Intellectual Property, Washington College of Law, American University, under the supervision of Peter Jaszi with the assistance of Nick Lewis, titled "Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis."

In August 2010, the Library of Congress issued the report "The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age External." Chapter 4 includes a discussion of fair use.

U.S. Copyright Office

Additional information about copyright and fair use can be found at following websites of the US Copyright Office:

Other Sites

John Lennon's "Imagine"

Issues related to fair use and music have become more and more prevalent in the past two decades due to internet sharing of music and downloads and due to the rampant practice of "sampling" of rap music records and the like. Though many of these uses never generate lawsuits or controversy, some cases have been brought to trial. One of the most meaningful was in 2008 when Yoko Ono Lennon, Sean Ono Lennon, Julian Lennon, and EMI Blackwood Music, Inc., brought a suit against a group of filmmakers who used 15 seconds of Lennon's song "Imagine" in their film in order to critique the song’s ideas without seeking prior consent. A federal judge ruled in favor of the filmmakers, stating that "the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright." The court's decision can be read online External.

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