What does the "fair use privilege" mean?
Several important limitations to the author's exclusive rights exist under copyright law to encourage citizens to fully and openly exchange and build upon information to increase the public's knowledge. The most important limitation to the author's exclusive rights is the public's right to exercise a "fair use privilege" regarding copyrighted works. Fair use refers to an individual's right to use copyrighted material in a reasonable manner without the consent of copyright owner. In Sony v. Universal City Studios; the U.S. Supreme Court stated, "any individual may reproduce a copyrighted work for a 'fair use;' the copyright owner does not possess the exclusive right to such a use." The fair use privilege was originally a judicially created doctrine, but has subsequently been codified by the copyright statute.

Why does the public have a "fair use" right to use copyrighted material without the copyright holder's permission?
At the doctrine's core is a fundamental belief that not all copying should be banned, particularly in socially important endeavors. The Supreme Court explained, "the fair use doctrine exists because copyright law extends limited proprietary rights to copyright owners only to the extent necessary to ensure dissemination to the public.

Copyright law serves as a regulatory scheme designed to balance the competing rights of creators to exploit their work, entrepreneurs to receive a return on their investment, and the public's interest in gaining access to works. The fair use doctrine and other public rights are designed to further the ultimate goal of disseminating knowledge to the public. In developing an information infrastructure that serves the public interest and encourages the open flow of information, it is essential to continue to balance the competing interests and preserve the public's fair use rights in an electronic environment as it has in more traditional formats.

How do I know if my use of copyrighted material would be considered a fair use?
Whether a particular use of a copyrighted work will be considered a fair use not subject to copyright depends upon the particular facts and circumstances involved. The biggest problem with the right is often trying to determine whether it applies to a specific action. This is because the law on fair use is murky and no real definition has ever emerged.

There is no "bright line" test that can tell if a particular use would be considered "fair," but the Copyright Act lists particular activities generally considered fair (this list is not to be construed as exclusive or limiting in any way). Some examples of uses listed in the statute that would generally be considered a fair use to copy copyrighted material include: Criticism, comment, parody, news reporting, teaching, scholarship, research, or personal use such as time or format shifting.

What are the factors to balance to determine if a use is fair?
The copyright statute lists four factors to balance together on a case-by-case basis to determine if a particular use would be considered fair. The law's language does not preclude consideration of other factors however. The factors to consider include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.

2. The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.

4. The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

Due to the difficulty in determining exactly when the fair use privilege would allow you to exercise one of the rights otherwise reserved for the copyright holder (and the penalties for guessing incorrectly can be extremely costly, even including jail time), it is wise to consult experienced counsel as well as to review previous judicial opinions where courts have analyzed whether a particular use would qualify as fair.

Do I have the right to make a copy of my CD for my own personal use?
Yes. The fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use. Allowing people to make a copy of copyrighted music for their personal use provides for enhanced consumer convenience through legitimate and lawful copying. It can also enlarge the exploitable market for the rights holders. The fair use privilege's personal use right is what allows an individual to make a backup copy of their computer software as an essential defense against future media failure.

Personal use also permits music fans to make "mix tapes" or compilations of their favorite songs from their own personal music collection or the radio for their own personal enjoyment in a more convenient format, or "format shifting." Another example of acceptable personal use copying of a copyrighted work is "time-shifting," or the recording of a copyrighted program to enjoy at a later and more convenient time.

As new media present new ways for people to enjoy music, the public's fair use rights accompany them into the electronic frontier. Now, music fans have the right and ability to copy their own music collection onto their own computer storage device and create customized play lists for their own personal use and enjoyment of their music.

It is important to note that while consumers have the right to listen to their own music collection for their own personal use, they do not have the right, however, to make their music collections available to others by uploading them onto the Internet for public downloading.

** To learn more about copyright law's fair use privilege, check out Stanford University's Copyright and Fair Use Web Page at: http://fairuse.stanford.edu/

By Robin D. Gross, Staff Attorney, The Electronic Frontier Foundation

Material courtesy of the Record Collectors Guild