Page:H.R. Rep. No. 102-836 (1992).pdf/1



The Committee on the Judiciary, to whom was referred the bill (H.R. 4412) to amend title 17, United States Code, relating to fair use of copyrighted works, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following:

That section 107 of title 17, United States Code, is amended by adding at the end the following:

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Inasmuch as H.R. 4412 was ordered reported with a single amendment in the nature of a substitute, the contents of this report constitute an explanation of that amendment.

The purpose of H.R. 4412 is to clarify the intent of Congress that there be no per se rule barring claims of fair use of published works. Instead, consistent with Congress’s codification of fair use in the 1976 Copyright Act, the courts are to determine the affirmative defense of fair use of unpublished works on a case-by-case basis, after consideration of all the factors set forth in Section 107, title 17 United States Code, as well as any other factors a court may find relevant. The purpose of this legislation is thus to direct the courts to give proper weight to all factors; it is not the committee’s intention to direct the courts how much weight to give to any factor in a particular case.