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 judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gage for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which were stated in the 1964 bill and have both adopted in section 107: “(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and (4) the effort of the use upon the potential market for or value of the copyrighted work.”

The underlying intention of the bill with respect to the application of the fair use doctrine in various situations is discussed below. It should be emphasized again that, in those situations or any others, there is no purpose of either freezing or changing the doctrine. In particular, the reference to fair use “by reproduction in copies or phonorecords or by any other means” should not be interpreted as sanctioning any reproduction beyond the normal and reasonable limits of fair use. In making separate mention of “reproduction in copies or phonorecords” in the section, the provision is not intended to give this kind of use any special or preferred status as compared with other kinds of uses. In any event, whether a use referred to in the first sentence of section 107 is a fair use in a particular case will depend upon the application of the determinative factors, including those mentioned in the second sentence.

Intenion behind the provision

In general.—The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, as outlined earlier in this report, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.

Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. However, since this section will represent the first statutory recognition of the doctrine in our copyright law, some explanation, of the considerations behind the language used in the list of four criteria is advisable. This is particularly true as to cases of copying by teachers, and by public libraries, since in these areas there are few if any judicial guidelines.