The Law of Fair Use and the Illusion of Fair-Use Guidelines

Several “official” and formal guidelines that attempt to define the scope of fair use for specific applications—notably for education, research, and library services—have emerged in the years since passage of the Copyright Act of 1976. Although some interested parties and some governmental agencies have welcomed these guidelines, none of them ever has had the force of law. This article analyzes the origins of guidelines, the various governmental documents and court rulings that reference the guidelines, and the substantive content of the guidelines themselves to demonstrate that in fact the guidelines bear little relationship, if any, to the law of fair use. The guidelines are negotiated resolutions of conflicts regarding fair use, and yet they are often presented as standards to which one must adhere in order to remain within the law. This article further analyzes the guidelines from a conceptual perspective and finds that the process of developing the guidelines gives them the appearance of a normative quality, while the portrayal of the guidelines as formal standards sanctioned by authoritative structures gives them the appearance of positive law. These qualities are merely illusory, and consequently the guidelines have had a seriously detrimental effect. They interfere with an actual understanding of the law and erode confidence in the law as created by Congress and the courts. Because pressure to develop additional guidelines appears inevitable, this article identifies deficiencies in the guidelines of the past and concludes with recommendations for improving the processes for, and the outcome of, future efforts to development new guidelines that interpret and apply the law of fair use.