Last Updated on February 21, 2017, 4:18 pm ET
This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.
*This is a guest blog post by Jonathan Band, policybandwidth*
The absence of a copyright notice on content posted by its author on the Internet should weigh in favor of fair use of that content, by libraries and other users, under the second fair use factor.
Until the United States joined the Berne Convention in 1989, a work could fall into the public domain if it was published without a copyright notice. The notice had to include the copyright symbol, the name of the copyright owner, and the year of first publication. The Berne Convention prohibits “formalities” as a condition for protection, so once the United States joined the Berne Convention, it eliminated the notice requirement.
However, the Copyright Act still provides an incentive for including a copyright notice. Under 17 U.S.C. § 401(d), if a copyright owner applies a copyright notice to his work, no evidentiary weight may be given to a defendant’s claim that he is an innocent infringer in mitigation of damages. In other words, if the copyright owner applied a notice, a defendant can’t claim the infringement was innocent because he or she “was not aware, and had no reason to believe, that his or her acts constituted an infringement….” This means that the defendant can’t seek reduction of the statutory damages minimum from $750 to $200 per work infringed.
The Copyright Act does not set forth what impact copyright notice should have on the fair use analysis. Nor, as far as I am aware, does the fair use case law. But a powerful argument can be made that the absence of a copyright notice should weigh in favor of fair use under the second fair use factor.
The second fair use factor—the nature of the copyrighted work—receives little attention by courts. They typically ask whether the work is published or unpublished, and whether it is a work of fact or fiction. Robert Kasunic has argued that courts should take a more nuanced view of the second factor. In particular, Kasunic contends that the second factor should be understood to ask “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.” Kasunic adds that “once we understand the work and the reasonable and customary expectations of authors for that type of material, we can better understand how various uses might affect the incentive to create such works.” Significantly, the starting point for Kasunic’s analysis is Judge Leval’s famous law review article Toward a Fair Use Standard. With respect to the second factor, Kasunic explains that Judge Leval “recognized the need to distinguish between authors of works for whom copyright provided an incentive to create and those authors who were incidental beneficiaries of copyright.”
It is hard to imagine a clearer indication of an author’s expectations concerning her work—whether she intends to use copyright to control subsequent uses of her work or instead is an “incidental beneficiary” of copyright—than whether she attached a copyright notice when she published it. In many situations, a user could reasonably assume that by omitting notice, the author was signaling that she did not expect to rely on copyright to control reproduction and distribution of the work. In such situations, the author’s failure to place a notice on the work should weigh in favor of fair use under the second factor.
What are these situations? Daily, millions of photographs, videos, blogs, songs and other works are posted on the Internet. Many (if not most) of these works are posted without copyright notice. The terms of service of large social media platforms such as Facebook specify that users agree that everyone may use their content published on the platform. But vast quantities of content are posted on other websites that do not have such terms of service. People repost these works without requesting the author’s permission and without incurring the author’s opposition.
In the event the author of such a work did challenge a reuse, fair use is the legal theory that would best support the lawfulness of the reuse. And the absence of copyright notice should buttress the fair use calculus under the second factor. A user could reasonably interpret the absence of notice as a signal that the author did not expect to rely on copyright to control the reproduction and distribution of the work—that the author is just an incidental beneficiary of copyright. Of course, this is just one element of one factor, and would not be dispositive of the fair use question. And if there were indicia that the work was posted on the website without the author’s authorization, then the absence of notice should have no weight.
Factoring the absence of notice into the fair use calculus could be of particular importance to libraries interested in harvesting content posted on websites. Although the existing fair use case law is very strong for the preservation of this content and its inclusion in search databases, the jurisprudence is less developed with respect to providing access to full text or full-sized images. The argument that the author’s failure to include notice tilts the second factor in favor of a fair use determination should give libraries additional comfort as they decide what to do with web content they have collected.