Fair Use and Free Speech
Fair use is so flexible - and unpredictable - because the legal system recognizes that it is related to the essential freedom of expression provided for in the First Amendment to the U.S. Constitution. Fair use is often called the “breathing space” for free speech, free inquiry, and open exchange of ideas in copyright law. Fair use strives to protect the expressive rights both of the copyright holder and of the public at large.
Due in no small part to its valuable flexibility, U.S. fair use is more complex and unpredictable than some of the straightforward categorical exceptions in other countries’ laws. Each possible use of an existing work has to be looked at anew. This uncertainty can be very frustrating.
Guidelines Are Certain, But Misleading
It’s tempting to try to use the categories listed in the statute (“criticism, comment, news reporting, teaching […], scholarship, or research”) as hard-and-fast rules. However, the key words in that paragraph are “for purposes such as…”- the list is illustrative, not exhaustive. There are both fair and unfair uses within those categories, and many fair uses outside of them, too.
It’s also tempting to look for guidance from sources that give hard-and-fast rules. Some ideas people have about clear-cut fair uses ("all educational uses are okay!" "the first time I share an article with my students, it's always allowed") come from agreements developed between a few players, or as a result of settlements of lawsuits. Many of these ideas are out of date - the agreements may have expired, or some of the players may have decided not to play by those rules anymore. None of these ideas have legal force!
Another set of misleading hard-and-fast fair use guidelines come from the content industry - often developed as guidelines to assess risk internally - but then incorrectly shared, or misunderstood, as statements of law: “quoting 250 words or less is always okay”, “any video clips over 30 seconds are not fair use”. “Amount” is measured proportionately for fair use purposes, so these types of guidelines are always misleading. 25 seconds from a work that totals 35 seconds could well be unfair, and 5 minutes from a 2-hour film might be fair. Taking “substantiality” into account, even 3 seconds of the “heart” of a short video could be unfair! Hard-and-fast "amount" guidelines are not legally binding, and can lead you to think something is fair when it is not, and to think something is not fair when in fact it is!
Best Practices - Better Guidance
Recently, a group of scholars at American University and other colleagues in many fields have been working to develop codes of best practices in fair use. Rather than attempting universal guidance, these best practices are deeply tied to specific contexts of use. Rather than spelling out clear-cut rules, the best practices provide suggestions, compare common activities, and are largely based on input from members of the community of users. The various Best Practices in Fair Use that exist are also not legally binding, but do better than hard-and-fast guidelines at acknowledging the flexible (and yes, uncertain) nature of fair use.
Of particular interest to scholars may be the Code of Best Practices in Fair Use for Scholarly Research in Communication, for Media Literacy Education, for Poetry, and for OpenCourseWare. Other codes include Documentary Film and Online Video. Because this approach to fair use has developed relatively recently, many fields have not yet developed codes. Still, parallels between similar fields may allow for extrapolation.