Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/58

42 court had to look at three things: (1) the nature and objects of the selection, (2) the quantity and value of the materials used, and (3) the degree in which the use may prejudice the work, diminish the author’s profits, or supersede the objects of the original work. After examining these factors, Justice Story concluded that Upham’s use was not fair.

Fair use remained exclusively within the judiciary until Congress codified it in the 1976 Copyright Act. Congress understood the complexity of legislating fair use; the legislative history notes that Congress intended to restate the fair use doctrine as it had developed in the courts, not to change, narrow, or enlarge it. Recognizing the difficulty in defining fair use, the House Judiciary Committee wrote

Fair use, then, is an equitable concept that attempts to balance the rights of copyright owners with the needs of those who use copyrighted works. The courts ultimately determine which uses are “fair uses.” American jurisprudence is guided by precedent, and a court deciding a case today will look at earlier decisions involving similar facts and issues for guidance. But because fair use determinations are fact-specific, it is difficult to generalize what is, and what is not, fair. A federal appellate court wrote in 1939 that “the issue of fair use … is the most troublesome in the whole law of copyright.” That is no less true today. The Judiciary Committee noted the freedom courts have in deciding whether a particular use 1s fair. It wrote 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 arise in particular cases precludes the formulation of exact rules in the statute.… Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts