8. Use for nonprofit or governmental purposes. C. Analysis of the criteria of fair use. III. Proposals for legislative revision since 1909- C. Sirovich and Dill bills, 1932. D. The Duffy, Daly and Sirovich bills, 1935–37_ FAIR USE OF COPYRIGHTED WORKS I. INTRODUCTION Section 1 of the copyright statute accords the proprietor of a copyright a number of exclusive rights. But unlike the patentee, the copyright owner does not enjoy the exclusive right to "use" his copyrighted work. His exclusive rights include, among others, the right to print, publish, copy and vend the work; in other respects, the public may "use" the work. Such use includes not only intellectual and esthetic appreciation, but more concrete utilization as well. For example, there is no impediment to the use of a copyrighted form book in the development of the appropriate forms.2 In other areas, particularly where the copyrighted work is used in the production of a new work by the user, a potential conflict arises. The use may be of such a nature and extent as to impinge upon those exclusive rights which the copyright owner does enjoy. Thus, assimilation of the protected material into a new product may conflict with the owner's right to copy or publish. The courts have attempted to resolve this conflict through the introduction of a rule of reason. Where the circumstances render the appropriation a reasonable or "fair" use, the court will refuse to impose liability. Accordingly, one commentator has stated in a frequently-quoted definition that: Fair use may be defined as a privilege in others than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent; notwithstanding the monopoly granted to the owner by the copyright.3 The courts have grappled with the problem of fair use without the aid of any specific statutory guide. The language of the statute has always been positive in granting exclusive rights, apparently admitting of no exceptions. In contrast, the statutes of most other countries have attempted to deal with at least some aspects of the problem.* In view of the potential breadth of the problem of fair use, the scope of this study has been consciously limited. In particular, discussion of the peculiar problems facing libraries, chiefly with respect to requests from users for photocopies of copyrighted works, has been minimized. This area is being reserved for specialized treatment. Also, limitations on the right of public performance are the subject of a separate study and will be mentioned only incidentally herein. 1 See Eichel v. Marcin, 241 Fed. 404, 410-411 (S.D.N.Y. 1913); Loew's, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 174 (S.D. Cal. 1955), aff'd, sub nom. Benny v. Loew's, Inc., 239 F. 2d 532 (9th Cir. 1956), aff'd by a 4-4 division of the Supreme Court, 356 U.S. 43 (1958). Cf. 35 U.S.C. § 154 which grants to patent owners "the right to exclude others from *** using ** * the invention." * American Institute of Architects v. Fenichel, 41 F. Supp. 146 (S.D.N.Y. 1941). Cf. Brightley v. Littleton, 37 Fed. 103 (C.C.E.D. Pa. 1888). BALL, THE LAW OF COPYRIGHT AND LITERARY PROPERTY 260 (1944). • See IV, infra. This special problem of libraries is exemplified by the Report of the Copyright Committee, United Kingdom Board of Trade, Oct. 1952, pars. 43-53, and §7 of the United Kingdom Copyright Act, 1956. |