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and at different times will not exempt them from the public performance and public display rights.

e. THE RIGHT TO DISPLAY THE WORK

PUBLICLY

11223

The right to display a work publicly is extremely significant in the context of the NII. To display a work means to "show a copy of it, either directly or by means of a ... television image, or any other device or process... The complex analyses to determine whether a particular transmission might amount to a "distribution" or a "performance" are rarely necessary in this context. The definition of "display" clearly encompasses, for instance, the actions of the defendant BBŚ operator in the Playboy case. 224

.224 Thus, when any

NII user visually "browses" through copies of works in any medium (but not through a list of titles or other "menus" that are not copies of the works), 225 a public display of at least a portion of the browsed work occurs. A display is "public" on the same terms as a performance is "public"; therefore, many NII uses would appear to fall within the law's current comprehension of "public display."226 Whether such acts would be an infringement would be determined by separate infringement analyses.

223

17 U.S.C. S 101 (1988 & Supp. V 1993) (definition of "display").

224

See discussion of Playboy case supra pp. 68-69 and infra pp. 81, 120-21.

225

Of course, to the extent that such lists or menus are protectible under the Copyright Act, the authors of such lists would have the exclusive right to publicly display them.

226

The copyright law's legislative history, describing the introduction of the display right, distinguishes displays "on a screen or tube" from reproductions. This language, written before the advent of the personal computer, applies easily to displays with which Congress was familiar in 1976 (those rendered by broadcast television receivers), but is inapplicable to digital "browsing" where the law itself clearly -- without resort to explanatory Congressional language -defines such acts as implicating the display and reproduction rights.

7. LIMITATIONS ON EXCLUSIVE RIGHTS

227

The copyright law provides a number of exceptions to the "exclusive" rights of copyright owners. The Copyright Act specifies that certain uses of copyrighted works are outside the control of the copyright owner.

While

many regard these exceptions as rights of users, they are, as a technical matter, outright exemptions from liability or affirmative defenses to what would otherwise be acts of infringement.

a. FAIR USE

228

The most significant and, perhaps, murky of the limitations on a copyright owner's exclusive rights is the doctrine of fair use. Fair use is an affirmative defense to an action for copyright infringement. 229 It is potentially available with respect to all manners of unauthorized use of all types of works in all media. When it exists, the user is not required to seek permission from the copyright owner or to pay a license fee for the use.

227

Although sometimes referred to as "rights" of the users of copyrighted works, "fair use" and other exemptions from infringement liability are actually limitations on the rights of the copyright owners. Thus, as a technical matter, users are not granted affirmative "rights" under the Copyright Act; rather, copyright owners' rights are limited by exempting certain uses from liability. It has been argued, however, that the Copyright Act would be unconstitutional if such limitations did not exist, as they reduce First Amendment and other concerns. Others have argued that fair use is an anachronism with no role to play in the context of the NII. 228

See 17 U.S.C. $ 107 (1988 & Supp. V 1993). The judicially created doctrine, although now codified in the Copyright Act, has been described as "so flexible as virtually to defy definition." See Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968).

Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1177 (1994). As an affirmative defense, the burdens of persuasion and coming forward with evidence both must be carried by defendants to avoid liability (i.e., a copyright owner need not prove an accused use not fair, but, rather, the defendant must prove its fairness).

229

The doctrine of fair use is rooted in some 200

years

of judicial decisions. The most common example of fair use is when a user incorporates some portion of a pre-existing work into a new work of authorship. 230 For example, quotation from a book or play by a reviewer, or the incidental capturing of copyrighted music in a segment of a television news broadcast is fair use. In the recent Campbell case, the Supreme Court expressly accepted the proposition that such "transformative" uses are more favored in fair use analyses than uses that amount to little more than verbatim copying.231 As one moves away from such transformative uses into the area of uses that -- for practical purposes compete with the copyright owner's exploitation of the work, the analysis becomes more difficult (as the number of litigated cases grows).

Before examining the doctrine developed by the courts, it is useful to examine the statutory language concerning fair use. Section 107 of the Copyright Act provides:

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 (sic), 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 whether such use is of a

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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.

232

The language may usefully be divided into two parts: the first sentence, which is largely tautological ("fair use... is not an infringement of copyright"), and the analysis required by the second sentence. The recitation of assorted uses in the middle of the first sentence has been held neither to prevent a fair use analysis from being applied to other "unlisted" uses nor to create a presumption that the listed uses are fair. 23 It does, however, provide some guidance on the

types of activities which might be considered fair use.

The core of Section 107 is the second sentence, in which Congress elaborates a test similar to that articulated by Justice Story more than 150 years ago.

234 It is clear that courts must evaluate all four factors in determining whether a particular use is fair, but may also take into account unenumerated "extra" factors, when appropriate.

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234

Justice Story stated that courts should "look to the nature and the objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901).

THE PURPOSE AND CHARACTER OF THE USE

Although the fourth factor has repeatedly been held to be the most important of the four factors, the first factor often plays a major role in determining the result when a defendant asserts a fair use defense.

The first factor contrasts "commercial" uses with "nonprofit educational" uses. There is, of course, a continuum between these two opposites, with most uses falling neatly into neither the favored nor disfavored pigeonhole. The weight of the factor may be inferred from the Supreme Court's very limited fair use jurisprudence: In the four fair use cases that it has decided, one noncommercial, noneducational use was held fair,235 two commercial uses were held unfair,236 and one commercial use was held potentially fair. 237

In the Sony case, the Court announced a "presumption" that helps explain courts' near universal rejection of fair use claims in commercial contexts. It declared that all commercial uses were to be presumed unfair,238 thus placing a substantial burden on a defendant asserting that a particular commercial use is fair. The

235

See Sony, supra note 22, at 456 (videotaping by individuals at home of offthe-air television broadcast programming for purpose of "time-shifting" -- as distinguished from "librarying" -- held fair use). 236

See Stewart v. Abend, 495 U.S. 207, 216 (1990) (theatrical and television distribution of motion picture over objection of owner of renewal copyright in underlying short story held infringing); Harper & Row, supra note 34, at 569 ("Nation" magazine's scoop of "Time" magazine's first serial rights in President Ford's memoirs held infringing, notwithstanding newsworthiness of the account of the Nixon pardon set out therein).

See Campbell, supra note 229, at 1177-79 (parodic lyrics of popular song not per se unfair by virtue of commercial purpose of parody; case remanded for further factual determination). 238

See 464 U.S. at 451. The subsequent Campbell decision indicates that the presumption is strongest in cases of "mere duplication" and weakest when a second commercial comer makes a transformative use and creates a derivative work. See Campbell, supra note 229, at 1177.

237

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