Justifications for Copyright Limitations & Exceptions
Pamela Samuelson*
I.

Introduction

Modern copyright laws grant authors a broad set of rights to control exploitations of their works.1
Typically tempering the reach of these broad rights are a series of limitations and exceptions(L&Es) adopted by legislatures or developed by courts through common law adjudication.2
L&Es uniformly result in free uses of protected works under U.S. copyright law, although inother countries, some L&Es may be subject to equitable remuneration obligations.3 L&E
provisions in national copyright laws often seem a hodgepodge of special purpose provisions
whose policy justifications are sometimes difficult to discern.4
This essay discusses ten types of justifications for L&Es and considers the relative utilities of
specific and open-ended L&Es. Its principal focus will be on U.S. law, although it will provide
numerous examples of L&Es embodied in other national copyright laws or authorized byinternational treaties.5*

Richard M. Sherman Distinguished Professor of Law, Berkeley Law School. I wish to thank Kathryn Hashimoto andAshley Lin for excellent research assistance in support of this essay and Niva Elkin-Koren, Paul Geller, Daniel
Gervais, Jane Ginsburg, David Hansen, Jessica Litman, Mathew Sag, and Molly Van Houweling for very helpfulcomments on an earlier draft.
1
See, e.g., 17 U.S.C. § 106.
2
See, e.g., 17 U.S.C. §§107-122. The distinction between “limitations” and “exceptions” is somewhat murky andthe two terms are often used interchangeably. “Exceptions” are probably best understood as outright exemptions
from copyright liability. “Limitations” is a term that include compulsory or statutory licenses creating a liability rule,so that acts are permissible but subject to an obligation to pay for the use. Whether L&Es should be understood ascreating defenses to infringement claims or legal rights to engage in specified conduct is contested. See, e.g.,
NATIONAL RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE (2000).
3
See, e.g., Jane C. Ginsburg, Fair Use for Free, or Permitted-But-Paid, 29 BERKELEY TECH. L.J. (forthcoming 2014)(recommending permitted-but-paid L&Es for many “redistributive” uses that American courts have ruled are fair,and pointing to foreign L&Es that permit uses but with remuneration). Some European scholars have proposed amodel copyright law for the EU that includes some L&Es that would be subject to remuneration. See THE WITTEMPROJECT: EUROPEAN COPYRIGHT CODE, Art. 5 (April 2010), available at www.copyrightcode.eu (hereinafter WITTEMPROJECT].
4
See, e.g., 17 U.S.C. §§107-122; Directive 2001/29/EC of the European Parliament and of the Council of 22 May
2001on the harmonisation of certain aspects of copyright and related rights in the information society, L 167/10
O.J. 22.6.2001, Art. 5 (setting forth permissible L&Es in the EU) (cited hereinafter as InfoSoc Directive). See also P.
Bernt Hugenholtz, Fierce Creatures: Copyright Exemptions: Toward Extinction?, Keynote Talk at 2 (noting the“bewildering variety” of L&Es in national copyright laws), IFLA/IMPRIMATUR conference on “Rights, Limitations
and Exceptions: Striking a Proper Balance,” 30-31 October 1997, available at
http://www.ivir.nl/staff/hugenholtz.html.
5
For information about permitted and mandatory L&Es in international treaties, see P.BERNT HUGENHOLTZ & RUTH
OKEDIJI, CONCEIVING AN INTERNATIONAL INSTRUMENT ON LIMITATIONS AND EXCEPTIONS TO COPYRIGHT: FINAL REPORT 51-55(March 6, 2008). Although some laws external to copyright—such as freedom of expression, competition, andconsumer protection laws—may limit the reach of copyright, id. at 29-34, this essay concentrates on L&Es
recognized inside of national copyright laws.

1Part II traces the historical development of L&Es in U.S. copyright law. For the first hundredyears of the nation’s existence, there were no L&Es in its copyright law, in part because rights
were fewer in number and narrower in scope than they became over time. In the late 19th andearly 20th centuries, courts invented the exhaustion of rights and fair use doctrines as limits on
copyright’s scope. The exhaustion doctrine was first codified in the Copyright Act of 1909 andfair use in the Copyright Act of 1976 (“1976 Act”),6 although these doctrines have continued to
evolve in the nearly four decades after their enactment.7 Less visible, although quite importantto those whom they affect, are dozens of other L&Es codified in the 1976 Act.
Part III considers nine justifications for the existence of these L&Es. One set promotes ongoing
authorship. A second recognizes both authorial and broader public interests in dissemination ofnews, freedom of expression, and access to information. A third protects privacy, personalautonomy, and ownership interests of consumers. A fourth aims to fulfill certain cultural andsocial policy goals. A fifth enables public institutions, such as courts and legislatures, tofunction more effectively. A sixth fosters competition and ongoing innovation. A seventh
exempts incidental uses lacking in economic significance. An eighth addresses market failure
problems. A ninth encompasses L&Es adopted for politically expedient reasons.
Part III discusses a tenth type of L&E, those designed to enable copyright law to be flexible andadaptable over time. The fair use doctrine accomplishes this goal in the U.S., although there areother ways to build flexibility into copyright laws. Especially in an era of rapid social, economic,
and technological change, flexible exceptions such as fair use have some advantages over
specific L&Es.
The essay concludes that the optimal policy for L&Es may well be to have specific exceptions
for categories of justified uses that are relatively stable over time and for which predictability ismore important than flexibility and to have an open-ended exception such as fair use to allow thelaw to adapt to new uses not contemplated by the legislature.
II.

The Evolution of Copyright L&Es in U.S. Law

Until the early 20th century, copyright laws typically granted authors a fairly narrow set of
exclusive rights and those exclusive rights were, in general, narrowly construed. When rights
were narrow, it was unnecessary to create exceptions to limit those rights. As legislatures
expanded authorial rights to cover a broader array of activities, the need to create limits on the
exclusive rights became apparent.
Shortly after the U.S. was founded, Congress passed the Copyright Act of 1790.8 It granted toauthors of books, maps, and charts a set of four exclusive rights that were conditioned oncompliance with a set of formalities aimed at giving notice of their copyright claims. The rights
6

17 U.S.C. §27 (repealed); 17 U.S.C. §§107, 109(a).
Parts III and IV will discuss some of this evolution.
8
Act of May 31, 1790, ch. 15, 1 Stat. 124 (repealed 1831).
72

were to “print, reprint, publish or vend” those works.9 Failure to comply with the required
formalities caused the work to attain public domain status and be free for all manner ofunlicensed uses.10
During the 19th century, the exclusive rights initially conferred in the 1790 Act continued toserve as the main legal protections for copyrighted works. Yet, some new exclusive rights werecreated. When Congress extended copyright protection to dramatic works in 1856, it granted
their authors the right to control public performances.11 When extending protection to works ofart for the first time in 1870, Congress similarly granted artists new exclusive rights to control
the “completing, copying, executing, [and] finishing” them.12 Authors of books got two newrights in 1870, one to control translations of their works, and a second to dramatize non-dramatic
works.13 Congress added musical compositions to copyright subject matter in 1831, 14 but did
not grant composers a right to control public performances of their works until 1897.15
Through the mid-19th century, copyright’s exclusive rights were generally interpreted rather
narrowly.16 Fair abridgements,17 dramatizations,18 making improved versions of older works,19

9

Id. § 1 at 124.
Id. § 3 at 125.
11
Act of Aug. 18, 1856, ch. 169, 11 Stat. 138, 138‒39 (repealed 1870).
12
Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212 (repealed 1909).
13
Id.
14
Act of Feb. 3, 1831, ch. 16, § 1, 4 Stat. 436, 436 (repealed 1870). Before this, however, musical compositions
were allowed to be registered in some instances within the broadly construed “books” category. See R. Anthony
Reese, Innocent Infringement in U.S. Copyright Law: A History, 30 COLUM. J.L. & ARTS 133, 136 (2007).
15
Act of Jan. 6, 1897, ch. 4, 29 Stat. 481, 481‒82. Under that act, only for-profit performances could be
infringements.
16
See, e.g., Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early
American Copyright, 118 YALE L. J. 186 (2008); Matthew Sag, The Prehistory of Fair Use, 76 BROOK. L. REV. 1371,
1380‒87 (2011) (tracing this view back to the Statute of Anne, 1710, 8 Ann. c. 19 (Eng.), and cases and treatises
from the 18th century).
17
See, e.g., Gyles v. Wilcox, (1740) 26 Eng. Rep. 489, 490 (Ch.) (“[A]bridgments may with great propriety be called a
new book, because not only the paper and print, but the invention, learning, and judgment of the author is[shown] in them….”).
18
See Stewart v. Abend, 495 U.S. 207, 245‒46 (1990) (Stevens, J., dissenting) (citing Stowe v. Thomas, 23 F. Cas.
201, 208 (C.C.E.D. Pa. 1853 ) (No. 13,514)). See also AUGUSTINE BIRRELL, SEVEN LECTURES ON THE LAW AND HISTORY OF
COPYRIGHT IN BOOKS 155-56 (1899) (discussing the omission of unauthorized dramatizations of novels as
infringements in English copyright law).
19
See, e.g., Matthewson v. Stockdale, (1806) 33 Eng. Rep. 103 (Ch.) 105; 12 Ves. Jun. 270, 275 (noting that an
improvement on an original is noninfringing); Sayre v. Moore, (1785) (holding that the reuse of elements of anavigation map was noninfringing because of defendant’s improvements), cited in Cary v. Longman, (1801) 120
Eng. Rep. 138 (K.B.) 139 n.b; 1 East 358, 361 n.b.
103and translations20 were generally regarded as non-infringing. For the most part, only exact ornear-exact copying of protected works was deemed an infringement.21
The fair abridgement doctrine was curtailed significantly after 1841 due to the influential
decision in Folsom v. Marsh.22 In Folsom, Justice Story ruled that a biographer’s unauthorized
excerpting of 353 pages of George Washington’s letters from a twelve volume biography was an
infringement because so much was taken that it risked supplanting demand for the original.23
Even though a few late 19th century decisions mention fair use, those cases involved weak andunconvincing infringement claims.24 Fair use did not become a meaningful limitation on thescope of copyright until the early 20th century. The 1903 case of Bloom & Hamlin v. Nixon
invoked fair use in the more modern sense of the term as a defense to infringement for the use ofsmall parts of a song in a parody.25
The “first sale” or exhaustion of rights limit on copyright was, like fair use, the product of acommon law process. The 1908 Supreme Court decision in Bobbs-Merrill Co. v. Straus was thefirst to recognize this limit on copyright’s exclusive right to control the sale of copies ofprotected works.26 The publisher of a novel set the price at $1 per copy. It sought to enforce thatprice through a notice that “[n]o dealer is licensed to sell [the book] at a less price, and a sale at aless price will be treated as an infringement of the copyright.”27 After Straus bought many
copies of the book and started selling them for 89 cents, Bobbs-Merrill sued for infringement.
The Supreme Court ruled that Straus’ resales were not infringements. The first authorized saleof copies to Straus had exhausted Bobbs-Merrill’s right to control sales of those copies. The
Court explained: “To add to the right of exclusive sale the authority to control all future retailsales, by a notice that such sales must be made at a fixed sum, would give a right not included in
the terms of the statute, and, in our view, extend its operation, by construction, beyond its

20

See, e.g., Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514) (holding that an unauthorized Germantranslation of Uncle Tom’s Cabin did not infringe). This ruling was legislatively overturned in 1870. See supra note
12 and accompanying text.
21
In addition to caselaw, supra notes 17-19, early copyright treatises endorsed this view. See ROBERT MAUGHAM, A
TREATISE ON THE LAWS OF LITERARY PROPERTY 126 (1828); RICHARD GODSON, A PRACTICAL TREATISE ON THE LAW OF PATENTS FOR
INVENTIONS AND OF COPYRIGHT 215(1823).
22
9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901).
23
Id. at 349.
24
See, e.g., Simms v. Stanton, 75 F. 6, 10 (C.C.N.D. Cal. 1896) (mentioning fair use in considering infringement claim
based on similarities in books on physiognomy).
25
125 F. 977 (C.C.E.D. Pa. 1903). For a history of fair use prior to its codification, see ALAN LATMAN, FAIR USE OFCOPYRIGHTED WORKS, STUDY NO. 14, COPYRIGHT LAW REVISION, STUDIES PREPARED FOR THE SUBCOMM. ON
PATENTS, TRADEMARKS AND COPYRIGHTS, S. COMM. ON THE JUDICIARY, 86TH CONG. 3, 8–14 (Comm. Print 1960)[hereinafter LATMAN STUDY].
26
210 U.S. 339 (1908).
27
Id. at 341.

4

meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.”28This was an important endorsement of copyright law’s first sale doctrine.29
A year after the Bobbs-Merrill decision, Congress passed the Copyright Act of 1909. The 1909
Act represented an interesting effort to match exclusive rights with specific subject matters.
Authors of literary works were, for example, given a translation right, authors of nondramatic
works a right to dramatize them, authors of dramatic works a right to convert them to novels, andauthors of musical works the right to arrange or adapt their works. 30 Other exclusive rights were
carefully cabined so that only some types of works qualified for them and only for-profit
performances could infringe rights in musical compositions.31
The 1909 Act was the first U.S. copyright statute to have L&E provisions. One was a
codification of the first sale exception to the vending right.32 A second limited the newly
created right of composers to control mechanical reproductions of their music in soundrecordings by subjecting their works to a compulsory license.33 Once a copyrighted song had
been recorded once, anyone could re-record the song as long as they paid the license fee set forthin the statute.34 A third exempted coin-operated music machines unless their owners charged foradmission to the premises.35
As the 20th century wore on, the uncodified fair use doctrine became the main common law limit
on copyright’s exclusive rights. Cases typically involved parodies and burlesques, scholarly
quotations, critical commentary, and news reporting, although not all of the defenses prevailed.36

28

Id. at 351.
Some cases before Bobbs-Merrill recognized limits on copyright owner rights to control repairs and renewals ofcopies of protected works. See, e.g., Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. REV. 889,
912-13 (2011).
30
See Copyright Act of 1909, Pub. L. No. 60-349, § 1, 35 Stat. 1075, 1075‒76 (repealed 1976).
31
See id., § 1(c) (lecture, sermon, address, or similar), § 1(e) (musical composition). Only dramatic works had apublic performance right without regard to profit. Id., § 1(d).
32
Id. §41. In 1947, the provisions of the 1909 Act were renumbered, and the exhaustion doctrine became §27.
33
Id., §1(e). The rationale for this compulsory license is discussed infra Part II.H.
34
The intent of Congress in adopting this compulsory license was not so much to allow “covers” of songs to bemade by unlicensed artists (although that has become one of its primary side benefits), but to enable more than
one sound recording company to be able to record the music. See infra Part III.H for a discussion of the origins of
this license.
35
Id. This came to be known as the “jukebox” exception because of the industry that later grew up around it. The
exception was originally intended to limit liability for coin-operated music machines perceived to have little
economic significance. By 1961, however, the annual gross revenue of the jukebox industry was half a billion
dollars, and the Register was determined to repeal the exemption, even though repeated efforts to repeal it had
previously failed. See H. COMM. ON THE JUDICIARY, 87TH CONG., COPYRIGHT LAW REVISION: REPORT OF THE REGISTER OFCOPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 31-32 (Comm. Print 1961) [hereinafter REGISTER’S 1961
REPORT]. The “jukebox” exception is discussed further infra notes xx and accompanying text.
36
See, e.g., LATMAN STUDY, supra note 25, at 8-12 (discussing cases).
29

5

Some exhaustion cases were litigated as well.37 Congress did not, however, create any new
copyright exceptions through the first half of the 20th century.38
By the mid-1950s, a general revision of U.S. copyright law was in contemplation, and the
Copyright Office commissioned a series of studies to inform the revision agenda.39 In 1961, theRegister of Copyrights issued a report to Congress that, among other things, sought to simplify
and generalize the exclusive rights provisions to these four: to make and publish copies, makenew versions, publicly perform, and make recordings.40
The 1961 Report recommended adoption of only two exceptions to these exclusive rights: onefor fair use and one to allow libraries to make single copies of journal articles for their patrons’
research uses.41 It proposed to repeal the compulsory license for mechanical reproductions ofmusical compositions and to either repeal the jukebox exemption or replace it with a newcompulsory license.42 The 1961 Report would, however, have retained the “for profit” limit on
the public performance right as to literary and musical works.43
By 1965, when the Register issued a supplementary report to accompany redrafted legislation, 44
many changes were evident. Under the new revision bills, 45 for instance, authors would have
five exclusive rights applicable to all works: a reproduction right, a derivative work right, a
distribution to the public right, a public performance right and a public exhibition right. 46 Theseare virtually identical to the rights enacted in 1976.
37

See, e.g., Fawcett Publ’ns v. Elliot Publ’g Co., 46 F. Supp. 717 (S.D.N.Y. 1942)(not infringement to combine andrebind sets of comic books); Bureau of Nat’l Literature v. Sells, 211 F. 379 (W.D. Wash. 1914) (not infringement tooverhaul and reconstruct secondhand sets of copyrighted books).
38
Previous bills to repeal the jukebox exception did not pass. See REGISTER’S 1961 REPORT, supra note 35, at 31.
39
Id. at ix. Five of the 34 studies concerned L&Es: one on fair use, one on photoduplication of copyrighted
materials by libraries, one on limitations on performing rights, and two on compulsory license issues. Thesestudies can be found at http://www.copyright.gov/history/studies.html.
40
REGISTER’S 1961 REPORT, supra note 35, at 21-24.
41
Id. at 24-26 (recommending codification of fair use and a library photocopying provision). The report did not
mention exhaustion, but the proposed change in exclusive rights might have made this exception seem
unnecessary.
42
Id. at 31-36.
43
Id. at 28. However, the Register thought that motion pictures and choreographic works should have a public
performance right without regard to the profit or nonprofit status of the use or user. Id.
44
H. COMM. ON THE JUDICIARY, 89TH CONG., COPYRIGHT LAW REVISION PART 6: SUPPLEMENTARY REPORT OF THE REGISTER OFCOPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL (Comm. Print 1965) [hereinafter
REGISTER’S SUPPLEMENTARY REPORT]. There was an intermediate draft between 1961 and 1965 that contained apreliminary draft of legislation and commentary. See HOUSE COMM. ON THE JUDICIARY, 88TH CONG., COPYRIGHT LAWREVISION PART 3: PRELIMINARY DRAFT FOR REVISED U.S. COPYRIGHT LAW AND DISCUSSIONS AND COMMENTS ON THE DRAFT (Comm.
Print 1964). In the interest of keeping a very long story shorter than it would otherwise be, I have chosen to focus
on the 1961 and 1965 reports which set the main parameters for the substantive revision of his law.
45
H.R. 4347, 89th Cong., 2d Sess. (1965) and S. 1006, 89th Cong., 2d Sess. (1965).
46
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 15. Although the 1909 Act had included a public exhibitionright, it applied only to motion pictures. The 1965 Report would have made a public exhibition right applicable to abroader set of works and would have treated the exhibition of motion pictures under the public performance

6

These exclusive rights would, as before, be subject to fair use and exhaustion limitations.47
However, because of certain proposed expansions in subject matter and in rights, the Register in1965 recommended four new exemptions for nonprofit activities and several others to address
industry-specific uses. The Register had, however, changed his mind about a special exception
for library copying.
The need for some exemptions for nonprofit activities arose because the 1965 exclusive rights
provision dropped the for-profit limit on the public performance right, expanded the public
performance right to all types of works, and created a new public exhibition right.
The Register recommended four exemptions from the public performances and exhibition rightsthat would affect nonprofit uses and users: one for face-to-face classroom teaching; a second for
closed circuit educational broadcasting of literary and musical works; a third for performances ofliterary and musical works during religious services; a fourth for other nonprofit educational,
religious, or charitable events under certain conditions.48 He also recommended an exemption formerely receiving broadcast programming in a public place.49 With some modifications, these
exemptions ended up in the 1976 Act.50
One of the 1965 Report’s industry-specific exemptions would have shielded operators ofbroadcast signal “booster” technologies from liability (although the Register thought cableretransmissions of broadcast signals should fall within the new public performance right).51 A
second would allow broadcasters to make ephemeral copies of programs essential to theirbusiness operations.52 In addition, the Register proposed an L&E to clarify that the scope ofright). REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 15. The public exhibition right later became the public
display right. 17 U.S.C. § 106(5).
47
17 U.S.C. §§ 107-108.
48
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 31-40. As the House Report later explained, “[t]he approachof the bill, as in many foreign laws, is first to state the public performance right in broad terms, and then to providethspecific exceptions for educational and other nonprofit uses.” H.R. REP. NO. 94-1476, 94 Cong., 2d Sess. (1976) at
62, reprinted at 1976 U.S.S.C.A.N. 5659 [hereinafter H. Rep. No. 94-1476}.
49
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 44. The Register sought to legislatively overturn Buck v. Jewell
LaSalle Realty Co., 283 U.S. 193 (1931) which had held a hotel proprietor liable for copyright infringement forhaving the radio playing in the hotel. A modified version of this provision is now codified at 17 U.S.C. § 110(5)(A).
50
17 U.S.C. §§ 110(1)-(4). By 1976, the closed circuit educational broadcasting exception was changed to a more
technology-neutral and more general instructional use provision. Id., § 110(2). The charitable use exceptions isconditioned on a lack of payment to the performers, the event being held either without admission charges or withany surplus from the admission charge being used exclusively for educational, religious, or charitable uses;
advance notice must be given to the copyright owner about the intended use, so he or she could object. Id., §110(4). This requirement was added so that copyright owners would not be forced to “donate” to charities they
did not support. See BILLS FOR THE GENERAL REVISION OF THE COPYRIGHT LAW, TITLE 17 OF THE UNITED STATES CODE, AND FOR
OTHER PURPOSES, HEARINGS ON H.R. 4347, H.R. 5680, H.R.6831, H.R. 6835 BEFORE SUBCOMM. NO. 3 OF THE H. COMM. ON THE
thst
JUDICIARY, 89 Cong., 1 Sess. (1966), Part 2 at 1130.
51
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 40-43. Eventually, the broadcast and cable industries
negotiated a compromise provision, now embodied in 17 U.S.C. § 111, that provides a compulsory license for cableretransmission of copyrighted programs. This compromise is discussed in Part III.H.
52
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 44-47. This exemption is now codified at 17 U.S.C. § 112.

7

copyright in pictorial, graphic, and sculptural (PGS) works did not extend to any useful article
depicted therein.53 The 1976 Act adopted the ephemeral copy and PGS limits, but eventuallyadopted a complex new provision enabling cable systems to retransmit broadcast signals subject
to a compulsory license.54
Five exceptions recommended in the 1965 report would affect the music industry. Although
now endorsing copyright protection for sound recordings,55 the Register perceived the need forsome limits on the rights accorded to their owners.56 The report proposed one exception topreclude a public performance right to sound recordings, and a second to restrict the scope of the
reproduction right so that imitating another’s recording would not infringe.57 A third would
retain, with some modifications, the compulsory license that had long allowed sound recordings
to be made of music for a set fee.58 The Register was still in favor of imposing liability on
jukebox operators, but proposed a one year moratorium so that they and music copyright owners
could come to some understanding.59 The Register also recommended an exemption for small
businesses for turning on radio or television sets with consumer-grade equipment.60 With somerefinements (and eventually a compulsory license for jukeboxes), these rules ended up in the
1976 Act.61
The 1965 Report backed away from the Register’s earlier proposal to create an exemption so thatlibraries could make single copies of articles and the like for patrons engaged in research. This
recommendation had initially seemed non-controversial for it was akin to the hand-copying that
had conventionally been thought non-infringing. It was, moreover, consistent with the 1935
“gentlemen’s agreement” under which publishers had accepted that libraries, archives, andmuseums could make single copies for researchers.62
The change of heart came about because the 1961 proposal had met with strenuous opposition
from all sides. Authors and publishers thought it went too far, and librarians and educators
thought it did not go far enough.63 In the 1965 report, the Register acknowledged that rights
holders had legitimate concerns that a library copying exception would threaten the markets for53

Id. at 47-49. Case law supported this limit on copyright scope. See, e.g., Fulmer v. United States, 103 F. Supp.
1021 (Ct. Cl. 1952) (copyright in drawing did not extend to parachute design depicted therein).
54
The ephemeral copy exception was codified as 17 U.S.C. §112 and PGS exception as 17 U.S.C. § 113(b).
55
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 5.
56
Id. at 49-52.
57
Id. at 51-53. Part III.I discusses the rationale for denying public performance rights to sound recordings.
58
Id. at 53. He did recommend some adjustments to the license. Id. at 53-59.
59
Id. at 59-61.
60
Id. at 44.
61
See 17 U.S.C. §§ 114(a), 114(b), 115(a), 116, 110(5)(B).
62
See Peter B. Hirtle, Research, Libraries, and Fair Use: The Gentlemen’s Agreement of 1935, 53 J. COPYRIGHT SOC’Y
U.S.A. 545, 546 (2005).
63
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 26-27.

8their works.64 The Register suggested that library copying should be dealt with through the fairuse doctrine.65
While the library copying issue was being debated in the halls of Congress, Williams & Wilkins,a publisher of medical research journals, decided to test library copying in court. It filed suitagainst the U.S. government to challenge the policy of the National Institutes of Health (NIH)
whose staff regularly made photocopies of individual journal articles for researcher patrons of
the library. In a split decision the Court of Claims ruled that this practice was fair use, and an
evenly divided Supreme Court affirmed that ruling.66
Notwithstanding the NIH’s success in that litigation, library representatives wanted greater
reassurances than this decision provided. Ultimately, they persuaded the Register and Congress
to support an exception to cover many common library activities, including an exemption forphotocopying of single articles for research patrons.67
By 1965, educational use copying had become even more contentious than libraryphotocopying.68 Educators wanted a general exception for educational use copying, butpublisher and author groups strongly objected. The 1965 Supplementary Report recommended
that educational use copying be dealt with under the fair use doctrine, as Congress eventually didin the 1976 Act.69
Educators were, however, able to influence the contours of the fair use provision in four ways:
first, by successfully defending the inclusion of teaching, scholarship, and research as three ofthe six favored uses; second, by persuading Congress to insert “(including multiple copies forclassroom use)” after “teaching” in the list of favored uses; third, by supporting language
directing courts to consider “whether [the] use is of a commercial nature or is for nonprofit
educational purposes” as part of the purpose-of-the-use analysis; and fourth, by urging theomission of limiting language (“to the extent reasonably necessary or incidental to a legitimate
purpose”) from the fair use provision.70
Because the divide over educational use copying was so deep, some members of Congress urged
educators and publishers to negotiate a set of fair use guidelines for educational use copying.71
The final House Report about the 1976 Act published two sets of negotiated guidelines which64

Id. at xiv-xvi, 14-15.
Id. at 27-28.
66
Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d by an equally divided court, 420 U.S.
376 (1975).
67
17 U.S.C. § 108(d).
68
For a detailed discussion of the debate over educational uses, see, e.g., WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN
COPYRIGHT LAW (1985).
69
REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 27-28. See H.R. REP. NO. 94-1476, supra note 48, at 66-72..
70
Compare 17 U.S.C. § 107 with REGISTER’S SUPPLEMENTARY REPORT, supra note 44, at 27 (draft language for the fairuse provision).
71
H.R. REP. NO. 94-1476, supra note 48, at 67.
65

9

have had considerable influence on institutional practices. 72 It remains controversial whether
these guidelines are a “floor,” with plenty of headroom for additional fair use copies foreducational purposes, or a “ceiling,” so that copying beyond the guidelines should be presumed
unfair.73
Between 1965 and 1976, several new L&Es found their way into to the copyright revision bills,74
and those proposed in 1965 generally became wordier and more complicated. During the
copyright revision process, debates over L&Es were among the most controversial issues withwhich the Register and Congress had to contend, especially L&Es affecting the cable andjukebox industries, public broadcasters, and libraries and educational institutions. Since 1976, six
new L&E provisions have been added to the statute, most of which contain subsections setting
forth more than one L&E.75
The L&E provisions of the amended 1976 Act constitute almost half of the heft of the copyright
law of the U.S. They are a motley crew. The next Part will explain just how varied they are in
substance and in policy justifications.
III.

Justifications for Copyright L&Es

This Part discusses nine justifications for copyright L&Es.76 Among the principled justifications
are those L&Es that protect authorial interests, consumer interests, specific industry interests,
72

See Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect toBooks and Periodicals (often referred to as the "Classroom Guidelines"), id. at 68-70; Guidelines for Educational
Uses of Music, id. at 70-71.
73
See Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair Use Guidelines, 62 OHIO ST. L.J. 601 (2001). In
Cambridge University Press v. Becker, which is currently before the Eleventh Circuit Court of Appeals, CUP has
argued that Georgia State’s electronic course reserve policy is unfair because it exceeds what’s permissible under
the Classroom Guidelines. See Brief of Appellants at 63, Cambridge Univ. Press v. Becker, Nos. 12-14676-FF, 1215147-FF (11th Cir. Jan. 28, 2013). The legislative history viewed the guidelines as “a reasonable interpretation of
the minimum standards of fair use.” H.R. REP. NO. 94-1476, supra note 48, at 72.
74
A special exception for certain library and archival uses of copyrighted works was added to the legislation as 17
U.S.C. § 108. A negotiated compulsory license provision for cable retransmissions of broadcast programming
became 17 U.S.C. § 111. A strangest exception in the 1976 Act was 17 U.S.C. § 117, which preserved the statusquo (whatever that was) as to computer uses of copyrighted works while a National Commission on New
Technological Uses of Copyrighted Works (CONTU) deliberated on these issues. Public broadcasters benefited
from a compulsory license that became 17 U.S.C. § 118.
75
The post-1976 new exceptions include §§ 119 and 122 to deal with secondary transmissions of broadcast
programming via satellite, both of which have compulsory license provisions, § 120 to limit the scope of copyrights
in architectural works, and § 121 to facilitate greater access to nondramatic literary works for print-disabled
persons. Some exceptions adopted in 1976 have been amended, most notably, an L&E that allows certain copying
and adaptations of computer programs in 17 U.S.C. § 117.
76
The nine justifications set forth in this Part do not fit neatly into the categorizations of L&Es proffered by other
scholars; they are the product of a bottom-up process (that is, I examined the L&Es that exist and then tried tocluster them, much as I did for clusters of fair uses in Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L. REV.
2537 (2009)). Professor Hugenholtz recognizes three types of justifications for copyright L&Es: some to protect
fundamental freedoms (such as free expression and privacy interests), some to fulfill public interests (such as
library and disabled person exceptions), and others to address market failures (such as compulsory licenses).

10and the public interest more generally, as well as those aimed at achieving social policy goals,balancing interests of competing stakeholders, and curing market failures. Less principled but
still important are some L&Es adopted for politically expedient reasons.77
While this Part concentrates mainly on justifications for L&Es found in U.S. law, this taxonomy
of justifications may be useful in assessing justifications for L&Es in national laws moregenerally. It is worth noting that L&Es may be justified in other national laws not only based on
the purpose of the use, but also based on the remuneration that goes to rights holders.78
A. Promoting Ongoing Authorship
Authorship is an ongoing process of communicating knowledge and culture among authors andtheir readers, viewers, and listeners. All authors draw upon preexisting works in the process ofcreating new ones. As Justice Story famously noted in 1845, “in literature, in science, and in art,
there are, and can be, few, if any, things, which in an abstract sense are strictly new and original
throughout. Every book in literature, science, and art borrows, and must necessarily borrow, anduse much which was well known and used before.”79
To promote ongoing authorship, the Berne Convention for the Protection of Literary and Artistic
Works requires member states to adopt a right of fair quotation in their national copyright laws.80
In keeping with this norm, many jurisdictions have specific L&Es allowing quotations, as well asother L&Es to allow parodies, satires, and critical commentary.81 Fair dealing provisions in somejurisdictions allow researchers to make copies of protected works for purposes of study, acommon practice among authors who are preparing to create new works.82 An example of a
specific L&E in U.S. law that promotes ongoing authorship is that which allows people to makephotographs, paintings and other representations of publicly visible buildings embodyingarchitectural works.83

Hugenholtz, supra note 4. The Wittem European Copyright Code grouped L&Es into four categories: incidental
uses, uses for purposes of freedom of expression and information, uses for social, political and cultural purposes,
and uses that enhance competition. WITTEM PROJECT, supra note 3, art. 5
77
Political expediency has a long pedigree in U.S. copyright lawmaking processes. See, e.g., JESSICA LITMAN, DIGITALCOPYRIGHT 22-63 (2001).
78
Ginsburg, supra note 3. Educational use and private copying L&Es are examples of permitted-but-paid uses insome national laws.
79
Emerson v. Davies, 8 F. Cas. 615, 619 (1845).
80
Berne Convention for the Protection of Literary and Artistic Works, art. 10(1) [hereinafter Berne Convention].
This treaty provision directs that quotations should be compatible with fair practice and no more extensive than isjustified by the purpose.
81
See, e.g., InfoSoc Directive, supra note 4, arts. 5(3)(d), (i), (k).
82See, e.g., UK Copyright, Designs, and Patents Act 1988, §§ 29-30.
83
17 U.S.C. § 120(a). Among the other reasons for this exception was the low likelihood of harm to the architects’market from these depictions and the difficulty, as a practical matter, of enforcing a rule that would make tourists
into prima facie infringers. See Architectural Design Protection: Hearings on H.R. 3990 and 3991 Before the11

Most of the breathing room for ongoing authorship in U.S. copyright law comes from the fair use
doctrine. In its landmark decision Campbell v. Acuff-Rose Music, Inc., the Supreme Court spokeof fair use as “permit[ting]…courts to avoid rigid application of the copyright statute when, on
occasion, it would stifle the very creativity which that law is designed to foster.” 84 The facts ofCampbell illustrate this point.
Acuff-Rose owns a copyright in the well-known Roy Orbison song, “Pretty Woman.” LutherCampbell and his rap group 2 Live Crew recorded an identically named song that drew uponsome of the lyrics, melody, and guitar riffs of the Orbison song in a parodic manner. Acuff-Roserefused Campbell’s request for permission to make transformative use of the song and sued
Campbell for infringement when 2 Live Crew went ahead with its rap parody anyway.
In considering Campbell’s fair use defense, the Supreme Court recognized that “[p]arody needs
to mimic an original to make its point….”85 The Court noted that the 2 Live Crew song
conveyed a very different message than the Orbison song: “2 Live Crew juxtaposes the romantic
musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex,
and a sigh of relief from paternal responsibility.”86 The Court deemed it “significant” that after
copying the first line of the Orbison song, 2 Live Crew “thereafter departed markedly from theOrbison lyrics for its own ends.”87 The Court concluded that 2 Live Crew had taken no morethan was necessary for its parodic purpose, which weighed in favor of its fair use defense.
Many productive uses of an earlier author’s work have been deemed fair by the courts. An
example is New Era Publications Int’l v. Carol Publishing Group.88 New Era owns copyrights
in works authored by L. Ron Hubbard, the founder of the Church of Scientology. Carol
published an unauthorized biography that contained 121 passages from 48 of Hubbard’s
writings. In an affidavit, the biographer explained that these quotations were necessary to support
the book’s thesis that “Hubbard was a charlatan and the Church [was] a dangerous cult.” 89 The
court expressed skepticism that potential customers for the authorized biography that New Era
planned to commission would be deterred from buying that work because of the disparaging
biography published by Carol. Hence, the court upheld Carol’s fair use defense.
Campbell and New Era are examples of critical commentary fair uses, but productive uses may
well be fair if they are neutral or positive about the works on which they draw. In Bill Graham

Subcomm. on Courts, Intellectual Property and the Administration of Justice of the House Comm. on the Judiciary,
101st Cong., 2d Sess. 15-18 (1990).
84
510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990). The Supreme Court cited
approvingly, id. at 576-79, to a classic law review article on fair use., namely, Pierre L. Leval, Toward a Fair UseStandard, 103 HARV. L. REV. 1105 (1990).
85
Campbell, 510 U.S. at 580-81.
86
Id. at 583.
87
Id. at 589.
88
904 F.2d 152 (2d. Cir. 1990).
89
Id. at 156.

12

Archives v. Dorling Kindersley Ltd.,90 for example, the publisher of a cultural history of theGrateful Dead band included seven small-size images of Grateful Dead concert posters as part ofits chronological timeline to give readers a sense of the cultural context of the band’s history. DK
initially sought permission to reproduce the images in the book from the copyright owner. It
ultimately used the images without permission after concluding that the price BGA offered was
unreasonable. The Court of Appeals concluded that DK’s use of the images was fair because
they were very small and had not been put in the book to take advantage of the artistic merit of
the posters but to illustrate cultural context.91
B. Fostering the Public Interest in Access to Information
Whenever an author forgoes the opportunity to reuse portions of another author’s work out offear that the use might be challenged as infringing, there is a loss not only to that author, but also
to the public. The public cannot benefit from the insights that the second author’s reuse of a firstauthor’s work would have enabled. There is, moreover, some loss to freedom of expression andto access to information when lawful reuses are forgone. Losses to the public may be more
substantial when news is not reported or publications on matters of public concern aresuppressed because of copyright concerns.
Many national copyright laws have specific L&E provisions that permit some reuses of incopyright materials in the course of news reporting or other means of providing information to
the public on current political or economic events.92 Some L&Es permit dissemination ofpolitical speeches.93 The Berne Convention recognizes that member states might decide “topermit the reproduction by the press, the broadcasting or communication to the public by wire ofarticles published in newspapers or periodicals on current economic, political or religious topics,
and of broadcast works of the same character….”94 These provisions grant greater latitude tothose who disseminate information on matters of public concern.
In the U.S., the fair use doctrine fulfills this function. The public interest in “having the fullest
information available on the murder of President Kennedy,” for instance, played an importantrole in the fair use case Time, Inc. v. Bernard Geis Associates.95 Time owned the copyright in the
Zapruder film of the presidential cavalcade in Dallas during which the President was shot. The
Zapruder video was the only documentation of the assassination. It was a significant piece ofevidence in the Warren Commission report on the President’s death and the wider public debate
over whether Lee Harvey Oswald was the sole assassin. Geis published a book aimed at proving
90

448 F.3d 605 (2d Cir. 2006).
Id. at 611. Documentary filmmakers often make fair uses of video footage in their films. See, e.g., Hofheinz v. A &E Television Networks, 146 F. Supp.2d 442 (S.D.N.Y. 2001). Some appropriation art may also be fair use. See, e.g.,
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
92
See, e.g., InfoSoc Directive, supra note 4, at art. 5(3)(c).
93
See, e.g., id., art. 5(3)(f).
94
Berne Convention, supra note 80, art. 10bis.
95
293 F. Supp. 130, 146 (S.D.N.Y. 1968).
91

13

that Oswald was not the only gunman. Its author relied heavily on several frames from theZapruder film as evidence in support of his claim. After Time refused to license the use of theseframes in the book, Geis prepared sketches of the frames for the book anyway, and Time sued
for infringement. The court ruled that Geis’ inclusion of the sketches in the book was a fair use
in part because of public interest in information about the assassination.
Fair use also protected the Council on American-Islamic Relations against infringement claims
based on its posting of four minutes of audio from a conservative radio talk show to prove that its
host had made anti-Muslim statements.96 The court ruled that “it was not unreasonable for
defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of thecriticized statements and provided the audience with the tone and manner in which plaintiff madethe statements.”97 Thus, the court’s opinion vindicated not only the Council’s free speechinterests in making the statements known, but also the public interest in getting accurate accessto this information about a radio personality’s prejudicial remarks.98
More mundane, but nonetheless newsworthy, was the use at issue in Nunez v. Caribbean Int’l
News Corp.99 The question was whether a newspaper was justified in publishing photos of anude woman to inform public debate about whether Miss Puerto Rico deserved to retain hercrown. The court observed that “the pictures were the story,” adding that “[i]t would have beenmuch more difficult to explain the controversy without reproducing the photographs.”100 It also
mattered that the newspaper used the photos for a very different purpose than the original
purpose (for a modeling portfolio). Under Campbell, uses for different purposes may betransformative, tipping in favor of fair use.101
Of course, newsworthiness is no guarantee that a use will be fair, as witnessed by the Supreme
Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enterprises.102 The left-leaning
news magazine published a 2250 word story about the upcoming publication of Gerald Ford’s
memoirs. The story quoted verbatim 300 words from the book and paraphrased other passages.
Ford’s publisher sued The Nation for infringement. The Nation argued its use had been fair.
Several factors contributed to the Court’s decision that the use was unfair. Probably the single
most important was the fact that the book was unpublished when The Nation’s story appeared.
The Nation, in the Court’s view, intended to “scoop” the right of first publication that copyright96

Savage v. Council on American-Islamic Relations, Inc., No. C 07-6076 SI, 2008 WL 2951281 (N.D. Cal. July 25,2008).
97
Id. at *6.
98
Id. at *8 (finding defendants fairly used the audio excerpts “to comment on and rebut derogatory statements
regarding their organization and their religious affiliations”).
99st
235 F.3d 18 (1 Cir. 2000).
100
Id. at 22 (internal quotation marks omitted).
101
Campbell, 510 U.S. at 579.
102
471 U.S. 539 (1985).

14

provides to authors.103 The Court criticized The Nation for having “purloined” a copy of thebook and for having extracted a qualitatively substantial portion of the book, namely, the part inwhich Ford discussed his decision as President to pardon Richard Nixon.104 This was the very
part of the book that Harper & Row had contracted with Time magazine to publish. That
contract was cancelled after The Nation’s publication of the Nixon pardon material.
Although the public interest in access to information did not favor fair use in the Harper & Row
decision,105 it has reemerged as worthy of consideration in Campbell.106 The Court noted thateven if the taking in a later work was too substantial to qualify as a fair use, the public’s interestin access to it might justify withholding injunctive relief and awarding damages instead.107
The public interest in access to information has also been a significant factor weighing in favor
of fair use in a series of U.S. cases in which search engines have won fair use defenses forcopying texts and images in order to index their contents and make snippets available in response
to user search queries.108
Data-mining of copyrighted works may also be fair use. Data-mining involves the digitization ofworks and indexing of their contents so that the texts can be analyzed by specialized software
programs. In A.V. v. iParadigms, LLC., for instance, some high school students sued a software
company for infringement because it made copies of their term papers and processed the copies
with a computer program designed to detect plagiarism.109 The court ruled that iParadigm had
made fair use of the papers, for it was only copying and processing the papers to assess whether
the papers were original or plagiarized. In Authors Guild, Inc. v. HathiTrust,110 the Second
Circuit has ruled that the HathiTrust digital library made fair use of books from research librarycollections when creating a full-text searchable database enabling researchers to run search
queries for books mentioning specific topics of interest. Some countries have adopted special
exceptions for data-mining of in-copyright works.111
C. Protecting User Privacy, Autonomy, and Property Interests
Privacy and autonomy interests of users of in-copyright works are protected in national copyrightlaws through limits on authorial rights to control performances, displays, communications, and103

Id. at 562.
Id. at 562, 565.
105
Id. at 557-58.
106
Campbell, 510 U.S. at 578, n.10.
107
Id.
108
th
See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811 (9 Cir. 2003). Lexis and Westlaw recently won fair use
defenses for digitizing briefs filed in litigated cases, which increased public access to legal information withoutharming the market for the briefs. See White v. West Pub. Corp., -- F. Supp.2d – (S.D.N.Y. 2014).
109th
562 F.3d 630 (4 Cir.2009). For an in-depth discussion of copyright implications of data-mining issues, see, e.g.,Matthew Sag, Copyright and Copy Reliant Technology, 103 NW. L. REV. 1607 (2009).
110-- F.3d – (2d Cir. 2014).
111
See, e.g., Copyright Law of Japan, art. 47septies.
104

15

distributions to those that are to the “public.”112 Privacy and autonomy interests of users are
sometimes additionally protected through special L&E provisions that authorize copying forprivate or personal uses.113 Many nations have fair dealing provisions that enable personal use
copying for purposes such as research, study, criticism, and review. 114 In the U.S., fair use plays
an important role in enabling personal use copying.
A key fair use decision affecting personal use copying was Sony Corp. of America v. Universal
City Studios.115 Universal sued Sony for contributory infringement because it sold Betamax
video tape recorders to the public knowing or having reason to know that purchasers would makeinfringing copies of movies in which Universal and its co-plaintiff Disney owned copyrights.
The Supreme Court ruled against this claim because Betamax machines had substantial noninfringing uses, including copying of television programs whose rights holders did not object tothis practice. The most substantial use of Betamaxes was taping programming for viewing at alater time. The Court ruled that time-shift copying of television programs qualified as fair use.
Private noncommercial copying, the Court opined, should be presumed to be fair, a presumptionthat should be overcome only if there was evidence of a meaningful likelihood of harm to themarket for the works.116 Universal had conceded that no harm had happened to date and the
Court viewed its theories of future harm to be speculative.117 This decision took a broad view of
personal use copying as fair use.118
Exhaustion of rights also provides some breathing room in national copyright laws for owners ofcopies to make a range of personal uses of protected works.119 Owners of copies have personal
property rights that give them a measure of freedom to use the copy and share it with others. The
owner can generally lend the copy to others, rent or lease it, use it as collateral for a loan, resell

112

See, e.g., 17 U.S.C. §§ 106(3)-106(5). This and other lacunae in U.S. copyright law affecting personal uses are
explored in Jessica LItman, Lawful Personal Use, 85 TEX. L. REV. 1871 (2007).
113
See, e.g., Copyright Law of Japan, art. 29 (personal use), 30 (private study).
114
See, e.g., UK Copyright, Designs, and Patents Act 1988, §§ 29-30; Australia Copyright Act of 1968, §§ 40-41.
115
464 U.S. 417 (1984).
116
Id. at 451.
117
Id. at 456.
118
There are few private or personal fair use decisions in the U.S., owing in part to difficulties in detecting suchuses and the expense of litigation compared with likely recovery if the lawsuit succeeds. In the few peer-to-peer
file-sharing cases that went to trial, fair use defenses have been unavailing. See, e.g., Capitol Records v. Thomasth
Rasset, 692 F.3d 899 (8 Cir. 2012).
119
See, e.g., 17 U.S.C. § 109(a); Copyright Designs and Patents Act, Section 18(3)(a) (UK); InfoSoc Directive, supranote 4, art. 4. See also Aaron Perzanowski & Jason Schultz, Copyright Exhaustion and the Personal Use Dilemma,
96 MINN. L. REV. 2067 (2012). Another special exception allows owners of copies of computer programs to sell themas long as they delete copies after the resale. 17 U.S.C. § 117(b).

16it, give it away, bequeath it to heirs, and/or destroy it if he so chooses.120 Exhaustion also entitles
the owner of a copy of a work to display his copy to the public.121
National copyright laws sometimes have special L&Es that provide consumers with somelatitude in their uses as to certain types of works. Many countries, for example, have special
provisions that confer on owners of copies of computer programs the right to make copies
necessary to use the programs, to make backup copies, and to adapt the programs as necessary toenable its use.122 Another example is the special U.S. exception that allows owners of buildings
embodying architectural works to modify them.123
D. Fulfilling Social and Cultural Policy Goals
Virtually all national copyright laws have some L&Es aimed at fulfilling certain social andcultural policy goals. Especially common are rules that enable the use of in-copyright materials
in the course of face-to-face teaching in nonprofit educational institutions,124 enable libraries andarchives to reproduce works to preserve them,125 and enable the creation of special format works
so print-disabled persons can have greater access to literary works.126
L&Es that allow teachers and students to make instructional uses of copyrighted works
obviously promote societal objectives to educate students to expose them to their cultural
heritage and to prepare them for their future roles as members of society. Preservation ofcultural heritage ensures that future generations will have access to the cultural and intellectual
artifacts of the past. Increased access for print-disabled persons allows them to participate more
fully in the cultural life of their society and become more productive citizens.127
U.S. copyright law contains an outright exemption for classroom performances and displays ofin-copyright works,128 a privilege allowing libraries and archives to make copies to preserve
some in-copyright works,129 to replace lost or damaged copies if other copies are unavailable at areasonable price,130 and to give to patrons for research purposes,131 as well as special rules to120

Under U.S. law, exhaustion does not, however, apply to copies obtained by rental, lease, or lending. 17 U.S.C. §109(d). The lending of computer programs and sound recordings is restricted under § 109(b).
121
17 U.S.C. § 109(c).
122See, e.g., Copyright Act of Japan, art. 47ter, 47quater.
123
17 U.S.C. § 120(b).
124See, e.g., InfoSoc Directive, supra note 4, art. 5(3)(a).
125
See, e.g., id., art. 5(2)(c).
126
See, e.g., id., art. 5(3)(b).
127
The importance of enhancing access to works by disabled persons has recently been recognized in aninternational treaty. See Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired, or Otherwise Print Disabled, WIPO Doc. VIP/DC/8 Rev (June 27, 2013), available at
http://www.wipo.int/edocs/mdocs/copyright/en/vip_dc/vip_dc_8_rev.pdf.
128
17 U.S.C. § 110(1).
129
17 U.S.C. § 108(b).
130
17 U.S.C. § 108(c).
131
17 U.S.C. § 108(d).

17facilitate making books and journals more accessible to print-disabled persons.132 Fair use
sometimes complements these specific exceptions. For example, in the HathiTrust case, thecourt upheld creation of a full-text searchable database of books for purposes of preserving thebooks and of making them more accessible to print-disabled persons.133
Among the other exemptions in U.S. law that arguably achieve social policy goals are those thatexempt public performances of music and nondramatic literary works in the course of religious
services134 and during other nonprofit educational, religious, or charitable events as long as
certain obligations are satisfied.135
The 1976 Act’s exemptions for religious services and charitable events are perhaps
understandable given that the public performance rights under the 1909 Act had not extended tothese acts or actors. Some Washington-savvy representatives of these groups must have realizedthat their institutions were now facing prospective liability for activities in which they had longengaged without obtaining copyright licenses. They may have found a sympathetic ear in theRegister and members of Congress, emphasizing the social benefits they provide.136
E. Enabling Public Institutions to Function
Copyright is ubiquitous under modern laws, with rights attaching automatically by operation oflaw to original works of authorship.137 This means that all manner of documents—memoranda,
reports, letters, outlines, photographs, just to name a few—are covered by copyrights, even if
their creation was not induced by copyright incentives. Reproducing and distributing copies ofthese documents may be necessary for discovery proceedings in civil cases, investigations ofcrimes, exhibits for trials or administrative proceedings, legislative deliberations, and useful incarrying out other public institutional functions.
Many nations have special exemptions from liability for uses of in-copyright materials ininvestigations, adjudications, administrative proceedings and the like. 138 In the U.S., fair use
once again serves this function. Courts have found fair use, for example, when police made andpublicly displayed copies of photographs of a crime victim in connection with the investigationof his murder in a case in which the photographer was a suspect. 139 Fair use also shielded aninvestigator who took a camcorder into a movie theatre to record scenes from a sexually explicit
132

17 U.S.C. § 121.
nd
Authors Guild, Inc. v. HathiTrust, -- F.3d – (2 Cir. 2014).
134
17 U.S.C. § 110(3).
135
17 U.S.C. § 110(4).
136
Yet one might question whether exemptions for religious and charitable events are justifiable subsidies. Afterall, churches and charities have to pay for many other products and services they consume. Singing music is such aregular part of religious services that it might have seemed logical to require churches to license the performanceof copyrighted music.
137
See, e.g., 17 U.S.C. § 102(a). Under U.S. law, works must be fixed in a tangible medium to be protectable. Id.
138
See, e.g., Copyright Act of Japan, art. 42.
139
Shell v. City of Radford, 351 F. Supp. 510 (W. D. Va. 2005).
133

18

film to provide the district attorney with evidence to prove that these depictions of certain sexualacts constituted a nuisance under local laws.140 Patent lawyer copying of scientific and technicalarticles was held fair use because it was done to fulfill obligations to disclose prior art to the U.S.
Patent and Trademark Office in connection with applications for patent protection.141
F. Fostering Competition and Ongoing Innovation
Many national copyright laws have specific L&Es aimed at promoting competition and ongoing
innovation. This explains a provision that limits the scope of U.S. copyrights in PGS works byexcluding the design of any useful article depicted therein.142 If designs of useful articles are
depicted in copyrighted drawings, they are free for competitive copying and for ongoing
innovation unless patented.143
Some nations have adopted specific exceptions to permit computer programs to be reverse
engineered when necessary to enable software engineers to extract information needed to createa second program that will successfully interoperate with an existing program.144
Without a reverse engineering privilege, the developer of a first program would have complete
control over who could make a computer program that would compete with applications either
developed by that firm or by its licensees. The developer of the first program would also be able
to block the development of innovative follow-on programs.
The fair use doctrine in the U.S. has allowed unauthorized persons to reverse engineer computer
program code when this results in the creation of a non-infringing program. The principal U.S.
case is Sega Enterprises Ltd. v. Accolade, Inc.145 Accolade had developed videogames for PCs,
but wanted to adapt its games so they could be played on the popular Sega platform. Accoladebought copies of Sega games and reverse engineered them to discern the interface information it
would need to create a version of its games that would interoperate with the Sega system.
The Ninth Circuit Court of Appeals ruled that Accolade’s purpose favored fair use because its
goal was to extract information from the Sega programs to enable it to make a non-infringing
interoperable program. The nature of the copyrighted works favored fair use because programs
are functional works that do not reveal the unprotectable information they embody and reverse
engineering was sometimes the only way to get that information. Although Accolade’s copying
was substantial, the copying was only intermediate (that is, part of the development process, not140thJartech, Inc. v. Clancy, 666 F.2d 403 (9 Cir. 1982).
See, e.g., American Institute of Physics v. Schwegeman, Lundberg, & Woessner P.A., 2013 WL 4666330 (D. Minn.
2013).
142
17 U.S.C. § 113(b).
143See, e.g., Ralph S. Brown, Eligibility for Copyright Protection: A Search for Principled Standards, 70 MINN. L. REV.
579 (1985).
144
See, e.g., Directive 2009/24/EC of the European Parliament and of the Council on the Legal Protection ofComputer Programs, art. 6, L 111/16 O.J. 5.5.2009.
145th
977 F.2d 1510 (9 Cir. 1992).
14119

in the final product). Accolade games did not supplant market demand for Sega games, but
merely competed on the merits with the Sega games. The court recognized the importance ofallowing developers to offer consumers more choices among products.
Another competition and innovation fair use case was Lewis Galoob Toys v. Nintendo ofAmerica.146 Galoob sold an add-on program called the Game Genie that allowed owners ofvideogames for the Nintendo platform to change temporarily the play of those games (e.g.,increasing the number of lives of certain characters). Galoob asked a court to declare that its saleof Game Genies was non-infringing. The Ninth Circuit questioned whether use of the Game
Genie created infringing derivative works, but even if so, this was fair use because it did notsupplant demand for Nintendo games. This ruling freed others to develop add-on programs.147
Galoob was the main precedent on which ClearPlay relied to justify its development of softwarethat enabled owners of DVD movies to block violent, sexually explicit, or offensive parts of themovies to make them more “family-friendly.”148 Before a court ruling on the claim that thissoftware infringed the derivative work right, Congress enacted an L&E to enable thedevelopment of this type of software.149
Two other competition-promoting specific L&E in U.S. law are those that allow copying ofcomputer programs in the process of repairing computers and performance of music in stores
where recordings are sold for the purpose of aiding retail sales of the recordings.150
G. Accommodating Incidental Uses
It is sometimes necessary to make copies of copyrighted works in order to carry out legitimate
functions. National copyright laws often recognize this through specific exceptions. One
example in the 1976 Act is the ephemeral recording exception adopted at the behest of broadcast
television operators.151 Broadcasters often make ephemeral copies of programs so the programs
can be broadcasted at a later time. As long as such copies are retained only for archival purposes

146

th

964 F.2d 965 (9 Cir. 1992).
Another competition-fostering fair use involved the use of copyrighted images in advertising. SonyEntertainment once claimed that the developer of a program that emulated the functions of Sony’s PlayStation
platform infringed copyright by publishing ads featuring screen shots of Sony games on its platform. The courtthfound the advertising use to be fair. Sony Entm’t America Inc. v. Bleem LLC, 214 F.3d 1022 (9 Cir. 2002).
148
Huntsman v. Soderbergh, No. 02-M-1662 (D. Colo. Filed Aug. 19, 2002). This exception does not extend toediting offensive materials out of the DVD movies. See Clean Flicks of Colo. v. Soderburgh, 433 F. Supp.2d 1236 (D.
Colo. 2006).
149
17 U.S.C. § 110(11). This exception concomitantly serves the autonomy interests of owners of DVDs to watch
movies in a manner that suits their tastes and preferences.
150
17 U.S.C. §§ 110(7), 117(c). The latter provision legislatively overturned the ruling in MAI Systems Corp. v. PeakthComputer, Inc., 991 F.2d 511 (9 Cir. 1993), which held that making RAM copies in the course of repairing acomputer infringed copyrights in the programs.
151
17 U.S.C. § 112(a). The Berne Convention recognizes ephemeral broadcast copying as legitimate conduct toexempt from copyright liability. Berne Convention, supra note 80, art. 11bis.
147

20and used solely by the transmitting broadcaster, they lack a separate economic significance thatwould warrant imposition of copyright liability.
Another example is a common exception permitting owners of computer programs to makecopies essential to the utilization of the programs.152 It is impossible to use a program without thecomputer itself making numerous copies in the course of use. These copies are incidental to thenormal operation of the program. It would make no sense to say that individuals or firms must
pay once to obtain a copy of the program and then pay again to make copies necessary to use it.
The European InfoSoc Directive recognizes that incidental copies made of digital works lackindependent economic significance; it mandates that these incidental copies be exempted from
copyright liability.153 There is, interestingly enough, no equivalent provision in U.S. law. As aresult, making incidental copies of music, photos, and texts when playing or viewing them on
one’s computer might seem to implicate the reproduction right because there is no statutory safe
harbor for this activity akin to that created for computer programs. Fair use (or implied license)
would almost certainly fill the gap for the missing equivalent to the software utilization
exception. The Copyright Office has recently suggested that a more general incidental copying
privilege should be given serious consideration.154
H. Aiming to Cure Market Failures
Copyright markets can fail to form or be dysfunctional for a number of reasons.155 The
transaction costs of negotiating licenses on a work-by-work and rightsholder-by-rightsholder
basis may, for instance, be prohibitive. Market power of some players in certain industry sectors
can make it difficult or impossible to achieve or approximate competitive market pricing.
Regulatory interventions intended to achieve certain goals in an industry sector can, as a
byproduct, create barriers to attaining competitive market results. Holdup problems or otherfactors may make certain industry players unwilling to license uses on terms that other players
deem reasonable.
Compulsory licensing has been a frequent tool to resolve market failures in copyright industry
sectors. Some copyright exemptions may also be due, in whole or in part, to market failure
considerations.
The first compulsory license in U.S. copyright law allowed anyone to make a mechanicalreproduction of a musical composition after the first authorized sound recording of that music.156
152

117 U.S.C. § 117(a). Fair use also sometimes privileges incidental uses of copyrighted works. See, e.g., ItalianBook Corp. v. Am. Broad. Co., 458 F. Supp. 65 (S.D.N.Y. 1978) (incidental capture of music in news coverage ofparade).
153
InfoSoc Directive, supra note 4, art. 5(1).
154Maria Pallante, The Next Great Copyright Act, 36 COLUM. J. L. & ARTS 315, 325-26 (2013).
155
See, e.g., Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been
Only Part of the Story, 50 J. COP. SOC’Y 149 (2003) (discussing variety of reasons why copyright markets may fail).
156
See supra note 33 and accompanying text.

21

This license was created out of fear of monopoly control of the sound recording market. 157 This
fear arose because while the courts in the early 1900s were struggling over whether theunauthorized manufacture and sale of piano rolls infringed music copyrights,158 the Aeolian Co.
was quietly buying up exclusive licenses to make sound recordings of popular music. Aeolian
wanted to be the only firm that could make sound recordings of popular music.
After the Supreme Court ruled that piano rolls were not copies of music under then-existing law,
it was almost inevitable that Congress would be asked to expand the exclusive rights ofcomposers to control mechanical reproductions of their works. But as this was underconsideraion, there was great concern about the competitive impact of Aeolian’s exclusive
licensing project. Adoption of a compulsory license made it possible for firms other than
Aeolian to participate in the piano roll market as long as they provided statutorily prescribedcompensation to rights holders for the music they recorded. Piano rolls were the first of manysound recordings that have been subject to this compulsory license.
By 1961, monopoly concerns no longer justified the existence of this compulsory license, which
is why the Register of Copyrights called for its abolition in the first stage of the copyrightrevision process.159 However, stable industry practices had grown up around the license, and soin 1965, the Register changed his mind about the desirability of repealing it.160 The compulsory
license needed some adjustments, however, to make it fairer and less cumbersome.161
In addition to retaining the compulsory license for sound recordings of music, Congress createdthree new ones in the 1976 Act. One required jukebox operators to pay an annual relatively
small flat fee for public performances of musical works for each such machine on theirpremises.162 A second benefited public broadcasters. Proponents used market failure arguments
in support of this license, saying it was necessary to overcome a multitude of administratively
cumbersome and very costly rights clearance problems that, left unchecked, would impair thevitality of public broadcasting.163 A third resolved a longstanding bitter dispute between
broadcasters and cable television systems.

157

REGISTER’S 1961 REPORT, supra note 35, at 32-36.
See, e.g., White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1 (1908).
159
REGISTER’S 1961 REPORT, supra note 35, at 32-36.
160
REGISTER’S SUPPLEMENTARY REPORT, supra note 40, at 53-54.
161
Id. at 53-59. The 1976 Act reduced some administrative burdens the 1909 Act license had imposed andincreased the fixed rate for the license. H.R. REP. NO. 94-1476, supra note 48, at 107-11.
162
17 U.S.C. § 116. The House Report did not directly invoke market failure as a rationale for this license, although
it noted that “the whole structure of the jukebox industry has been based on the existence of the copyrightexemption” the industry enjoyed under the 1909 Act. H.R. REP. NO. 94-1476, supra note 48, at 113. That license is
no longer in effect, however, because after the U.S. joined the Berne Convention in 1989, Congress amended the1976 Act to encourage voluntary negotiations for jukebox licenses with a proviso that Copyright Royalty judges
could step in as needed if voluntary negotiations failed.
163
H.R. REP. NO. 94-1476, supra note 48, at 116-17.
158

22

During the copyright revision process, broadcasters brought two lawsuits challenging cable
television retransmissions of television programs. They complained that cable systems weremaking significant amounts of money for retransmitting broadcast programs and paying nothing
for that privilege.164 The Supreme Court twice ruled that the public performances right under the1909 Act did not extend to passive retransmission of the broadcast programs by cable systems. 165
The highest priority for the broadcast industry in the copyright revision process was to ensurethat cable retransmissions of broadcast programs would be covered by the public performanceright under the new act. The Register supported this proposal in 1965.166 However, “full scaleverbal warfare” broke out in response to bills to codify this position in 1967.167 The failure of
the copyright revision legislation that year was largely owing to this unresolved controversy. 168
Complicating a resolution of the broadcaster-cable system copyright dispute was the importantrole that the Federal Communications Commission (FCC) played in regulating broadcasters.
Initially the FCC had declined to exercise jurisdiction over cable television because it did not
perceive cable systems to threaten the viability of the broadcast industry.169 By the mid-1960s,
as cable systems grew larger and more robust, the FCC decided they did pose a threat tobroadcasting. The FCC issued a rule forbidding cable systems operating in the 100 largest
television markets from importing distant signals unless they satisfied some stiff evidentiary
requirements (which almost none undertook).170 Then in the early 1970s, the FCC required cablesystems to transmit broadcast signals from local stations to their customers and set limits on thenumber of distant signals cable systems could import, as well as specifying conditions underwhich cable systems could import these signals.171
The FCC’s intensive regulation of cable retransmissions of broadcast signals complicated thetask of figuring out reasonable royalties and other terms because arms-length voluntary deals
between broadcasters and cable systems on price and other terms was implausible given the“must carry” rules. Requiring each of the nearly then-existing 3500 cable systems to negotiate
164

By 1976, there were approximately 3500 cable operators in 7700 communities, reaching 10.8 million homes,
and earning revenues of almost $770 million. H.R. REP. No. 94-1476, supra note 48, at 88.
165
Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974); Fortnightly Corp. v. United Artists
Television, Inc., 392 U.S. 390 (1968).
166
REGISTER’S SUPPLEMENTARY REPORT, supra note 40, at 40-42.
167
U.S. COPYRIGHT OFFICE, SECOND SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S.
COPYRIGHT LAW: 1975 REVISION BILL 122 (1975) [hereinafter REGISTER’S SECOND SUPPLEMENTARY REPORT].
168
H.R. REP. NO. 94-1476, supra note 48, at 89.
169
CATV and TV Repeater Services, 26 F.C.C. 403 , 431. (1959).
170
See REGISTER’S SECOND SUPPLEMENTARY REPORT, supra note 167, at 132-33. The cable industry had earlier challenged
FCC’s jurisdiction o regulate the cable industry. See United States v. Southwestern Cable Co., 392 U.S. 157 (1968)(upholding the FCC’s jurisdiction over cable television insofar as it was “reasonably ancillary” to its jurisdiction overbroadcast television).
171
In the early 1990s, the “must carry” rules were codified at 47 U.S.C. §§ 534-35. Cable industry firms
unsuccessfully challenged the “must carry” rules as a violation of their First Amendment-protected editorial
judgments. See Turner Broadcasting System, Inc., v. FCC, 520 U.S. 180 (1997).

23

licenses with every rights holder of every protected work broadcast on television would beprohibitively expensive. A compulsory license thus seemed to be necessary to facilitate
authorized uses.172
In the end, an extremely complex inter-industry negotiation resulted in the nearly
incomprehensible compulsory license provision embedded in the 1976 Act establishing thecompensation framework that is still in effect today. 173
Three other compulsory licenses have been created in the years following the 1976 Act: two
affecting satellite transmission of broadcast signals and one affecting webcasters. The satellite
transmission compulsory licenses are very similar to the cable compulsory license adopted in
1976.174 The prohibitively high transaction cost of negotiating with all possible rights holders
was the main rationale for the creation of a compulsory license for webcasting.175
Compulsory licenses are not the only way to address copyright market failures. Several of theoutright exemptions from liability in U.S. law may partially be explained by market failure
considerations. For example, the U.S. exception that allows authorized entities to make anddistribute copies of literary works in special formats for blind persons is justifiable not justbecause of a social policy to aid disabled persons, but also because markets for special format
works are so small that publishers rarely serve those markets.176
Some U.S. exemptions may be attributable to the lack of an institutional infrastructure akin tocollecting societies in Europe which license a wide range of nonprofit as well as commercial
uses of literary and other works.177 Without a one-stop-shop, low-cost licensing entity able togrant permission to copy and distribute large numbers of works owned by large numbers ofrights holders, markets may fail to form. Outright exceptions may thus be justifiable to enable
some socially desirable uses for which markets cannot effectively and efficiently operate.
I. Enabling Politically Expedient Outcomes
Legislatures sometimes enact L&Es based less on principle than on political expediency. One
example from the legislative history of the 1976 Act was the Register’s explanation for why
sound recordings should not have public performance rights. The Register regarded this issue asso “explosively controversial” that “the chances of [the] passage [of the general revision bill]
172

Elements of the consensus finally achieved to resolve the cable-broadcast television controversy, including thecompulsory license, are set forth in the REGISTER’S SECOND SUPPLEMENTARY REPORT, supra note 167, at 134-37.
173
17 U.S.C. § 111.
174
See, e.g., Rob Frieden, Analog and Digital Must-Carry Obligations of Cable and Satellite Television Operators in
the United States, 15 MEDIA L. & POL’Y 230 (2006).
175
See, e.g., Amy Duvall, Note, Royalty Rate-Setting for Webcasters: A Royal(ty) Mess, 15 MICH. TELECOMM. & TECH.
L. REV. 267 (2008).
176
17 U.S.C. § 121. Senator Chafee noted the reluctance of publishers to produce special format works in his
remarks in support of this legislation. See 142 Cong. Rec. S9066 (Chafee’s statements).
177
See, e.g., COLLECTIVE MANAGEMENT OF COPYRIGHTS AND RELATED RIGHTS (Daniel Gervais ed., 2d ed. 2010).

24

would be seriously impaired” if it included any proposal for a public performance right for soundrecordings.178 Broadcasters and owners of music copyrights opposed the grant of such a right.179
Radio and television stations had, of course, played recorded music for decades without paying
royalties to makers of the recordings because prior to 1972 sound recordings did not enjoy
copyright or any other intellectual property protection in the U.S.180 On purely utilitarian
grounds, nonpayment of royalties to sound recording companies could be justified because
broadcasts of music were like free advertising for the recordings. People who heard songs fromthe latest Beatles album on the radio were likely to go out to buy the album. (Indeed, soundrecording companies sometimes paid broadcasters to play recordings to boost their popularity, apractice that was only legal if the radio station announced that it had taken money to play themusic, which DJs did not always do.) Sound recordings that became “hits” on the radio werealso in demand for jukeboxes.
Broadcasters were understandably not keen to support legislation that would cut into theirrevenue streams. After all, they were already paying hefty sums to ASCAP and BMI for licenses
to broadcast musical compositions.
Composers, music publishers, and other copyright owners in musical works were even stronger
objectors to public performance rights for sound recordings.181 These rights holders were miffedbecause sound recording companies had long benefited at their expense from the low fixed rate
(2 cents per record) for the compulsory license fee for recorded music. Music copyright owners
feared that broadcasters would demand lower payments for licensing music rights if they now
had to pay royalties for public performances of sound recordings. Broadcasters could not easily
pass on higher costs to consumers if required to pay royalties to both composers and soundrecording companies. Broadcasters were, after all, transmitting music over the public airwaves
for free, and advertisers were likely to balk at higher rates.
The politically expedient compromise that ensued granted makers of sound recordings copyrightcontrol over reproductions and distributions of the recordings, but not over public
performances.182 Similarly politically expedient were the compulsory license compromises forcable retransmissions of broadcast programming and for jukebox operators who had threatened
178

st

st

REGISTER’S SUPPLEMENTARY REPORT, supra note 39, at 51-52. Yet, S. 543, 91 Cong., 1 Sess. (1969) would havethgranted a public performance right to sound recordings; however, this provision was omitted in S. 22, 94 Cong.,st
1 Sess. (1975).
179
REGISTER’S SUPPLEMENTARY REPORT, supra note 39, at 50-51.
180
Some state laws and judicial decisions had provided legal protection against counterfeit recordings, but theselaws and decisions did not confer public performance rights. See, e.g., U.S. COPYRIGHT OFFICE, FEDERAL COPYRIGHTPROTECTION FOR PRE-1972 SOUND RECORDINGS 20-49 (2011).
181
REGISTER’S SUPPLEMENTARY REPORT, supra note 40, at 51.
182
The recording industry has continued to lobby for full public performance rights, but has yet to attain them.
The U.S. Copyright Office has endorsed a general grant of public performance rights in sound recordings. See
Pallante, supra note 154, at 324. However, sound recording copyright owners now enjoy only an exclusive right tocontrol digital audio transmissions of their works. 17 U.S.C. § 106(6).

25to stymie the general copyright revision process unless they either retained their exemption or
got a compulsory license.183
Among the other special L&Es in U.S. law that seem more the product of political expediency
than of principle are the exemptions in the 1976 Act that allow governments and nonprofit
agricultural and horticultural fairs to perform copyrighted music without a license. 184 Why dothese groups have exemptions, but not other socially beneficial users and uses, such as Girl
Scouts singing “Kumbaya” at their gatherings?185
Nonprofit veterans’ and fraternal organizations also have an exemption allowing them to perform
nondramatic literary works and music without a license at social functions.186 This privilege
does not, however, apply to college fraternity or sorority social functions. Why are the social
functions of Shriners and Elks clubs, whose membership consists largely of middleclassemployed adults, more deserving of copyright exemptions than social functions of Alpha Tau
Omega, whose membership consists of mostly unemployed college kids?
If there is a principled basis for the strange pattern of exclusions and non-exclusions in U.S.
copyright law, it is not apparent.
IV.

Justifications for Flexible, Open-ended Exceptions

Flexible, open-ended exceptions have historically been an anathema in civil law jurisdictions.
The civil law tradition in Europe, which has influenced much of the rest of the world, has
183This threat was real because jukebox operators lived in virtually every Congressional district and their owners
were hopping mad about the proposed repeal of their exemption. The Register thought it would be “tragic” iftheir opposition would “cause the complete failure of a general revision bill that is urgently needed in the public
and national interest.” Yet, it would also be “deplorable” not to require jukebox operators to pay performanceroyalties. REGISTER’S SUPPLEMENTARY REPORT, supra note 40, at 60. A compulsory license at a low fixed rate permachine was the politically expedient way to resolve this controversy.
184
17 U.S.C. § 110(6). Hugenholtz once identified this exception as the product of lobbying, not of principle.
Hugenholtz, supra note 4, at 1. He is correct that this exemption was the product of lobbying by associations
representing agricultural fairs. One proponent emphasized the nonprofit educational purposes of these fairs,
noting that the fairs funded programs for young people and for farmers to learn how to raise better livestock.
Forcing fairs to pay copyright fees would, proponents said, threaten their existence. Hearings Pursuant to S. Res.
37 on S. 597 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the JudiciarystPart 3, 90th Cong., 1 Sess. 779-81 (1967) .
185
ASCAP has sometimes gone after Girl Scouts for unlicensed public performances of music. See, e.g., Julien H.
Collins III, When In Doubt, Do Without: Licensing Public Performances by Nonprofit Camping or Volunteer Service
Organizations Under Federal Copyright Law, 75 WASH. U. L. Q. 1277 (1997) (proposing a new exemption for thiskind of activity).
186
17 U.S.C. § 110(10). In lobbying for this L&E, the American Legion, the Veterans of Foreign Wars, and the
Shriners argued that they were as deserving of an exemption as agricultural fairs because they supported youth
programs, scholarships, mental health programs, the Red Cross, and cancer research. Any funds that went to pay
copyright royalties would reduce the amounts these organizations could use to support these worthy causes.
Hearings on S. 2082 Before the Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary,
96th Cong. 23-27 (1980). The American Legion reported that it was at the “top of the collection list” for music
licensing and had been unable to reach an acceptable agreement with ASCAP. Id. at 27.

26

assumed that legislators can and should make comprehensive laws that take account of all usecases that the law should address.187 This explains the myriad specific L&Es that are often foundin national copyright laws.188 These L&Es recognize that authors need to be able take some
expression from existing works to create critical commentaries, parodies, and biographies;
newspapers need to quote from political speeches and reports on issues of the day; teachers need
to use works to illustrate lessons for students; libraries and archives need to copy materials forpreservation purposes; and lawyers and judges need to make copies of documents as evidence.189
It is eminently reasonable to adopt specific L&Es to deal with stable uses that legislatures cananticipate, but it is not really possible for legislators to foresee and account for all possible usesof in-copyright works, especially in a time of rapid technological change.190
The U.S. Congress has been much more comfortable with fair use as a flexible, open-ended limit
on copyright, which gives courts discretion to evolve the law in keeping with the long-standing
American common law tradition. The legislative history of the 1976 Act characterized this
doctrine as “one of the most important and well-established limits” on copyright with an “ample
caselaw” applying it,191 and recounted other examples of uses that should be fair.192
In keeping with precedents that had applied the fair use doctrine prior to its statutory
codification, Congress provided guidance by setting forth four factors that courts should weightogether in making determinations about whether a challenged use was fair or foul. These
include: the purpose of the challenged use, the nature of the copyrighted work, the amount andsubstantiality of the taking, and the harm likely to be caused to the market for the work.193
Although some American and European commentators complain that fair use is unpredictable,194
others have demonstrated empirically that fair use cases tend to fall into fairly predictable
patterns.195 Uses tend to be fair if the amount taken was reasonable in light of the challenged
user’s purpose and the use did not cause measurable harm to the market.196

187

Flexibilities in European national copyright laws are discussed infra Part IV.B.
Dutch copyright law, for instance, has 75 specific L&Es. See P.BERNT HUGENHOLTZ & MARTIN R.F. SENFTLEBEN, FAIRUSE IN EUROPE: IN SEARCH OF FLEXIBILITIES 6 (Nov. 2011), available at
http://www.ivir.nl/publications/hugenholtz/Fair%20Use%20Report%20PUB.pdf. Some common law countries(Canada, for example) have fairly long lists of specific L&Es as well. See, e.g., Copyright Act of Canada (R.S.C., 1985,
c. C-42), arts. 29-32.2.
189
See, e.g, InfoSoc Directive, supra note 4, art. 5.
190
Congress recognized the need for fair use as a copyright doctrine to provide flexibility in an era of rapid
technological change. See H.R. REP. NO. 94-1476, supra note 48, at 66. The need for flexibility in copyright law foran “information society of highly dynamic and unpredictable change” is now recognized in Europe as well. See,e.g., HUGENHOLTZ & SENFTLEBEN, supra note 188, at 1-2.
191
H.R. REP. NO. 94-1476, supra note 48, at 65.
192
Id. at 65-66.
193
Id., now codified as 17 U.S.C. § 107.
194
See, e.g., David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use 269, LAW & CONTEMP. PROBS.
(Winter/Spring 2003).
195
See, e.g., Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005,
18827

A flexible, open-ended copyright limit like fair use has a distinct advantage over specific L&Es
in an era of rapid technological change because it provides a framework within which courts canbalance interests of copyright owners, of developers of new technologies or services, and of the
public to decide whether a new use is or is not, on balance, harmful in ways that copyright laws
are intended to address. Over time, a pattern of decisions or best practices guidelines can provide
a reasonable degree of predictability about the scope of the flexible limit.197
This Part explains how the fair use doctrine has accomplished this and other purposes in the
United States. It also discusses ways that nations can achieve some flexibility and openendedness in their copyright laws without adopting fair use as a limitation on copyright. These
alternatives may be more suitable to civil law countries.
A. Fair Use Provides Flexibility in U.S. Copyright Law
Fair use mediates tensions that arise in many new technology cases in the U.S. nowadays, but
this was not its original purpose. Fair use initially evolved as a limit on the scope of U.S.
copyright law principally to balance competing interests in cases in which second comers madeproductive uses of a first author’s work in creating a new one. In the last forty years, however,fair use has taken on an increasingly important role in enabling copyright law to adapt to newtechnological challenges not contemplated by the legislature.
Williams & Wilkins v. U.S. was arguably the first such case.198 This publisher challenged thephotocopying policy of the NIH library under which librarians made single copies of scientificresearch articles at the request of patrons. Photocopy machines did not exist in the time of the1909 Act, but once these machines came into widespread use, the question arose whether using
them to make single copies of in-copyright materials for research purposes was infringement.
The NIH and many researchers likened this to the hand-copying of passages from books andarticles that had long been thought fair. Williams & Wilkins insisted that the copies were not fairuse because they were unproductive and harming the emergence of a market for licensing suchuse.
Under current law, NIH-like library photocopying is exempt under a specific subsection of the
U.S. library exception and some educational use photocopying is unquestionably fair use.199 But
photocopying of articles for a commercial firm’s scientific research was held to be unfair in

156 U. PENN. L. REV., 549 (2008); Samuelson, supra note 76.
196
See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
197
See, e.g., Niva Elkin-Koren & Orit Fischman-Afori, Taking Users’ Rights to the Next Level: A Pragmatist Approachto Fair Uses, CARDOZO ARTS & ENT. L. J. (forthcoming 2014).
198
The Fortnightly case, which predates Williams & Wilkins, involved a new technological use of copyrighted
works, but it concerned whether the retransmission of broadcast signals fell within the public performance right,
not fair use. See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).
199
Photocopying within the Classroom Guidelines, discussed supra note 72, is unquestionably fair. Libraryphotocopying of single articles for patrons is privileged by 17 U.S.C. § 108(d).

28American Geophysical Union v. Texaco, Inc.200 An important changed circumstance that cut
against fair use in Texaco was the availability of licenses for photocopying from a new collecting
society, the Copyright Clearance Center.
Sony v. Universal was the first case to test whether copyright owners could stop the distributionof a technology that consumers could use to make infringing copies of in-copyright works.201
Fair use played a key role in resolving this dispute. Universal claimed that Sony was acontributory infringer because it sold Betamax machines knowing or having reason to know that
consumers would use them to make infringing copies of television programs. But the Court
thought otherwise:
One may search the Copyright Act in vain for any sign that the elected
representatives of the millions of people who watch television every day havemade it unlawful to copy a program for later viewing at home, or have enacted aflat prohibition against the sale of machines that make such copying possible.202
The Court noted that most owners of Betamax machines used them to make private
noncommercial copies of television programs shown on public airwaves for free for time-shifting
purposes. Because Universal offered only speculative theories about harm to its markets, theCourt ruled that this time-shifting was fair use, saying:[A] use that has no demonstrable effect upon the potential market for, or the valueof, the copyrighted work need not be prohibited in order to protect the author's
incentive to create. The prohibition of such noncommercial uses would merely
inhibit access to ideas without any countervailing benefit.203
The Court ruled that consumers had legitimate interests in getting access to Betamax machines
for their non-infringing uses.
The Sony decision is widely understood as having established a “safe harbor” for technologies
with substantial non-infringing uses, insulating their makers from infringement lawsuits (in theabsence of evidence that the makers were inducing users to infringe).204 This safe harbor has
been an important shield against liability for the makers of many innovative information
technologies, including iPods, MP3 players, scanners, and digital video recorders.

200

60 F.3d 913 (2d Cir. 1994). See also Princeton Univ. Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6Cir. 1996) (photocopying of in-copyright materials for educational coursepacks held unfair because licenses
available from CCC).
201
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
202
Id. at 456.
203
Id. at 450-451.
204
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (reaffirming the safe harbor but
holding that it does not shield those who induce infringement).

th29

The Sony decision can also be credited with laying the conceptual groundwork for numerous
other judicial decisions in new technology cases.205 It was, for instance, an important precedentthat helped to resolve several other controversies, such as reverse engineering of computer
programs to extract interface information necessary for compatibility, 206 search engine copyingof images on the Internet,207 and mass digitization of books from research library collections tomake a full-text searchable database.208 It is no wonder, then, that some commentators consider
fair use to be an important part of copyright’s innovation policy.209
Fair use has other advantages as well. For one thing, it is a concept that ordinary people canunderstand. By learning about fair and unfair uses, people can adapt their behavior to conform to
the fair ones. For another, fair use can avert a proliferation of specific exemptions that can makecopyright laws read like the tax code. Most non-professional users of copyrighted works do nothave the diligence or patience to wade through a long motley list of exceptions to find one that
arguably applies to the specific activity in which they are engaged. Most users can, however, ask
themselves a set of questions that will help them make fair use judgment (such as “is what I tookfrom an author’s work reasonable in light of my purpose for doing so, and how much (if any)
harm might this cause to the copyright owner?”). Finally, fair use engenders respect for
copyright law, for it avoids the rigidity that grants of exceptionally broad rights, tempered only
by a few narrow exceptions, can cause.
Most jurisdictions do not, for example, have a noncommercial user-generated content (UGC)
exception to allow remixes and mashups, even though this is a common form of creative
expression among the young.210 To leave UGC in copyright legal limbo is unwise. Fair use
generally resolves UGC issues in U.S. law. In the current era, when copyright touches the livesof virtually everyone, it is important that copyright rules are worthy of the public’s respect.
Interest in fair use as a limit on the exclusive rights of copyright has been increasing in the past
decade. Fair use has been adopted in a number of national copyright laws, including in Israel,
Taiwan, and Korea.211 Canada’s fair dealing provision has been amended to give it greater
205

See, e.g., Pamela Samuelson, The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice
Stevens, 74 FORDHAM L. REV. 1831 (2006). Especially important has been Sony’s recognition that copying the whole
work does not preclude a finding of fair use and that when the statute is ambiguous, courts should be guided by
the constitutional purposes of copyright. Id. at 1866.
206
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
207thPerfect 10, Inc. v. Amazon.com., 508 F.3d 1146 (9 Cir. 2007).
208
Authors Guild, Inc. v. HathiTrust, -- F.3d – (2d Cir. 2014).
209
See, e.g., Fred von Lohmann, Fair Use as Innovation Policy, 23 BERKELEY TECH. L.J. 829 (2008). See also THOMAS
ROGERS & ANDREW SZAMOSSZEGI, FAIR USE IN THE U.S. ECONOMY: ECONOMIC CONTRIBUTIONS OF INDUSTRIES RELYING ON FAIR USE(CCIA, 2011).
210
Canada recently adopted a special exception to allow noncommercial UGC. See, e.g., Daniel Gervais, UserGenerated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill C-32 at 465-69 in
FROM “RADICAL EXTREMISM” TO “BALANCED COPYRIGHT”: CANADIAN COPYRIGHT AND THE DIGITAL AGENDA (Daniel Gervais, ed.
2010).
211
JONATHAN BAND & JONATHAN GERAFI, THE FAIR USE/FAIR DEALING HANDBOOK (May 2013).

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flexibility so that it now resembles the U.S. fair use doctrine.212 Australia is considering
adoption of a U.S.-style fair use provision.213 The Dutch Parliament has expressed interest in fairuse.214 The European Commission’s recent consultation paper has asked whether Europe needs a
U.S.-style fair use provision or some other mechanism to provide greater flexibility in member
state copyright laws.215 Neelie Kroes, the Vice President of the European Commission, has
urged that copyright laws in Europe be reformed to enable more flexibility in their application.216
B. Other Ways to Achieve Flexibility
Fair use is, of course, not the only way that copyright laws can become more flexible. European
copyright experts have proposed several ways to achieve this goal. The Wittem Project’s model
European Copyright Code, for instance, identifies twenty or so specific exceptions that such a
code should embody, and then offers an open-ended exception to allow other analogous uses tobe deemed non-infringing.217
In an independent report prepared for the UK Intellectual Property Office, Professor Hargreaves
recommended that the UK adopt a flexible copyright limitation designed “to accommodate futuretechnological change where it does not threaten copyright owner.”218
Professors Hugenholtz and Senftleben have stated that “[t]he need for more openness incopyright law is almost self-evident in this information society of highly dynamic andunpredictable change.”219 These authors believe that there is already considerable flexibility
built into existing European copyright rules.220 For instance, the InfoSoc Directive’s list of
permissible exceptions provides considerable room for member states to craft flexible rules for awide range of activities.221 Some European decisions have reached flexible results in Internet
search engine cases, either by applying the fair quotation exception in a creative way or byrelying upon a concept of implied consent.222 Flexibility can also be achieved if courts rule
212

See, e.g., Michael Geist, Fairness Found: How Canada Quietly Shifted From Fair Dealing to Fair Use in THE
COPYRIGHT PENTALOGY: HOW THE SUPREME COURT OF CANADA SHOOK THE FOUNDATIONS OF CANADIAN COPYRIGHT LAW (Michael
Geist, ed. 2013), http://www.michaelgeist.ca/2012/07/canada-now-fair-use/.
213
AUSTRALIA LAW REFORM COMMISSION, COPYRIGHT AND THE DIGITAL ECONOMY: DISCUSSION PAPER, Chap. 4 (DP 79), 5 June
2013, available at http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79/4-case-fair-useaustralia.
214
HUGENHOLTZ & SENFTLEBEN, supra note 188, at 8, n. 19.
215
EUROPEAN COMMISSION, A PUBLIC CONSULTATION ON THE REVIEW OF THE EU COPYRIGHT RULES, available at
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm.
216
Neelie Kroes, Reform of EU Copyright Rules: Your Chance to Give Your Views! (Jan. 9, 2014),
http://ec.europa.eu/commission_2010-2014/kroes/en/content/reform-eu-copyright-rules-your-chance-give-yourviews.
217
WITTEM PROJECT, supra note 3, art. 5.
218
IAN HARGREAVES, DIGITAL OPPORTUNITY: A REVIEW OF INTELLECTUAL PROPERTY AND GROWTH 5 (May 2011).
219
HUGENHOLTZ & SENFTLEBEN, supra note 188, at 2.
220
Id., Chap. 4.1.
221
Id. at 14-16. Sweden, for instance, has a relatively open-ended fair quotation rule.
222
Id. at 15-16.

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against infringement claims when defendants are engaged in acts that would be lawful if donewith analog products.223 External doctrines such as freedom of expression may also provide
flexibility in applying copyright law in Europe.224
Some European scholars have proposed reconceptualizing the so-called “three step test” as a way
to achieve copyright flexibilities.225 The first step of this test calls for identifying the particularpurpose the L&E serves (that is, “certain special cases”); the second step inquires whether the
L&E would conflict with a normal exploitation of the work; and the third step considers whether
the L&E would unreasonably prejudice legitimate interests of the rights holder.226
These scholars explain that the drafting history of the three-step test “demonstrate[s] that [thetest] was intended to serve as a flexible balancing tool offering national policy makers sufficient
breathing space to satisfy economic, social and cultural needs.”227 The three-step test has someparallels to the U.S. fair use doctrine because its elements too are abstract concepts and because
purpose, market harm, and other legitimate interests are to be taken account in assessing whether
the three-step test is satisfied.228 Thus, application of the three-step test could be a treatycompliant way to achieve flexibility in European copyright laws.229
V.

Conclusion

Surprisingly little attention has been paid in the scholarly literature to the policy justifications forthe wide range of L&Es set forth in national copyright laws.230 This essay has sought to fill thisgap in the literature.
It has explained how U.S. copyright law evolved to create a substantial number of very specific
L&Es to achieve certain social policy goals and to address particular industry needs. It has
identified nine principled justifications for adoption of these L&Es, but recognized that some223

Id. at 23-24.
Id. at 25-26.
225
Christophe Geiger, Daniel Gervais, & Martin Sentfleben, The Three Step Test Revisited: How to Use the Test’s
Flexibility in National Copyright Law, PIJIP Research Paper No. 2013-4 (2013), available at
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1041&context=research.
226
Berne Convention, supra note 80, Art. 9(2).
227
Geiger et al., supra note 225, at 3.
228
Id. at 31-32.
229
There is some debate about whether open-ended flexible L&Es are compliant with international treaty
obligations. Some scholars assert that they are. See, e.g., Geiger et al., supra note 225. Others have been more
skeptical about this conclusion. See, e.g., Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J. L. &ARTS 75 (2000). Because fair uses tend to follow into fairly predictable patterns of policy relevant clusters, see, e.g.,
Samuelson, supra note 76, the “certain special cases” requirement would seem to be satisfied. A use is unlikely to
be fair if it would conflict with a normal exploitation of the work or otherwise unreasonably interfere withlegitimate interests of rights holders.
230
A rare exception is SAM RICKETSON, WIPO STUDY ON LIMITATIONS AND EXCEPTIONS OF COPYRIGHT AND RELATED RIGHTS IN THE
DIGITAL ENVIRONMENT (2003), available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805. This
study assesses the compatibility of several types of L&Es with the three step test.
224

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L&Es have been adopted more out of political expediency than out of principle. It has explained
why fair use became a flexible open-ended limit on copyright law in the U.S. to balance interestsof copyright owners, subsequent creators, and the public interest.
National copyright laws today need L&Es to provide flexibility in their laws in an era of rapid
technological change. Legislators today cannot possibly foresee all of the developments that
may have implications for copyright owners in an era of rapid technological change. Nor canlegislatures be expected to amend the law every time some new development raises questions noteasily answerable under the existing statutory framework. The fair use doctrine has served theflexibility function well for U.S. copyright law, and fair use has been spreading to otherjurisdictions. This doctrine is not, however, the only way to achieve flexibilities in national
copyright laws, as several prominent European scholars have demonstrated in recent work.
The optimal policy for copyright L&Es may well be to have specific exceptions for categories ofjustified uses that are relatively stable over time and for which predictability is more important
than flexibility and to have an open-ended exception such as fair use to allow the law to adapt to
new uses not contemplated by legislatures.

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